Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120114221 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120114221
Hearing No. 410-2011-00059X
Agency No. 4H-300-0235-08

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated July
29, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint
was improperly dismissed.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Customer Service, EAS-17 at the Agency’s Riverdale Church Street Station in Riverdale,
Georgia. On June 30, 2008, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination and harassment on the bases of race (Black), sex (female),
color (dark brown), disability, age (52), and in reprisal for prior protected EEO activity. The
agency defined complainant's complaint as encompassing the following claims:

1. since December 2007 and continuing, she was subjected to a hostile work
environment;
2. on October 20, 2007, she was instructed to utilize the time clock;
3. on November 8, 2007, she was issued a proposed Letter of Warning;
4. on February 2, 2008, she was issued a proposed Letter of Warning In Lieu of 7-
Day Suspension and subsequently, on February 22, 2008, she was issued a
Letter of Decision, upholding the 7-Day Suspension;
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5. on March 29, 2008, she was issued a Letter of Warning In Lieu of 14-Day
Suspension;
6. on April 28, 2008, the Acting Station Manager (Manager) cancelled her
mediation and instructed her to ride a route;
7. on April 28, 2008, her leave was denied and she was sent home;
8. on April 29, 2008, the Manager wrote a Letter of Concern to the Manager, Post
Office Operations (MPOO) that defamed her character;
9. on May 8, 2008, she was sent an Official Directive Reassignment order;
10. on an unspecified date, the MPOO denied her requests for Officer-in-Charge
positions; and
11. on an unspecified date, the MPOO changed her performance rating.

The Agency accepted the complaint and undertook an investigation. However, the Agency
then dismissed the complaint on the ground that Complainant had failed to cooperate with the
investigation. Complainant appealed that dismissal to the Commission which reversed and
remanded the matter to the Agency. v. United States Postal Serv., EEOC Appeal No.
0120090491 (June 4, 2010). On remand, the Agency concluded the investigation and informed
Complainant of her right to a hearing before an EEOC Administrative Judge (AJ). At
Complainant’s request the matter was assigned to an AJ. The AJ dismissed the complaint on
the ground that Complainant had earlier filed an appeal with the Merit Systems Protection
Board (MSPB), the resolution of which acted as a bar to the instant complaint under the
doctrine of res judicata

. The Agency’s final order fully implemented the AJ’s dismissal
decision. From that order, Complainant brings the instant appeal.

ANALYSIS AND FINDINGS
The AJ dismissed the complaint, pursuant to 1614 C.F.R § 1614.107(a)(4) because
Complainant had filed the MSPB appeal described above. In that appeal, MSPB Docket No.
AT-0752-09-0108-I-1, Complainant challenged the Agency’s demoting her for failure to follow
instructions and unacceptable performance. As an affirmative defense, Complainant asserted
that the Agency took the action against her in reprisal for her prior protected EEO activity. In
an Initial Decision, the MSBP AJ found that the Agency sustained its burden of proof with
respect to the demotion but mitigated the penalty to a 30-day suspension. The MSBP AJ also
held that Complainant failed to establish that she had been subjected to reprisal. The full
Board affirmed the finding on the merits but reinstated the demotion. 111 M.S.P.R. (June 23,
2009). The Federal Circuit affirmed. 355 Fed.Appx. 410, (Fed. Cir. 2009).

In the instant matter, the EEOC AJ held that the doctrine of res judicata required that the
complaint be dismissed because Complainant had the opportunity to raise her harassment claim
before the MSPB. According to the AJ “. . . the key is whether the Complainant could have
raised the claim in the prior suit and failed to do so.” AJ Decision at 15. The Commission’s
precedents do not support the application of res judicata in this manner.

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Waldron v. Department of Homeland Security, EEOC Appeal No.0120092344 (May 6, 2011)
sets forth the Commission’s view of this issue. In that case, cited in the AJ’s Decision here at
12, Complainant challenged his removal both in an MSPB appeal (unsuccessfully) and before
an EEOC AJ. The EEO complaint also alleged that he was discriminated against when his pay
increase and training were suspended, pending his removal. The EEOC AJ dismissed the
complaint “because it concerns the circumstances surrounding his removal action addressed by
the MSPB.” On appeal the Commission affirmed, in part, and reversed, in part, explaining:

. . . we find that the AJ improperly dismissed claims (1) and (3), the halting of
Complainant's pay raise and the denial of training. These matters were not
before the MSPB. While these alleged incidents may have preceded
Complainant's removal, in Equal Employment Opportunity Commission
Management Bulletin, 100-1 (Oct. 24, 2003), the Commission required the
deletion of Section II.B.4.d of Chapter 4 of the Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (MD-110) (1999),1 including
footnote 4.2

Management Bulletin 100-1 explains that although this section in
MD-110 was designed to reduce fragmentation of EEO complaints on related
matters that were pending before both the EEOC and the MSPB, the section
(which recommends dismissing the matters from the EEO process and sending
them to the MSPB to be consolidated with the matter on appeal there)
constituted “a request for an MSPB Judge to hear matters which may not be
within the jurisdiction of the MSPB.” Therefore, the Management Bulletin 100-
1 deleted this section of MD-110. Accordingly, we find that the Agency
improperly dismissed claims (1) and (3), which encompass matters that led up to
Complainant's removal from the Agency. Thus, we remand claims (1) and (3)
for further processing.

1 The section, which agencies were instructed by the Bulletin to delete, was entitled “Where a
complainant has pending a non-mixed case complaint or a series of non-mixed case complaints
and the claims raised in those complaints are inextricably intertwined with an appeal on a claim
that is appealable to the MSPB.”
2 Footnote 4 stated “this provision is specifically meant to address those situations where a
series of events, concerned in time or type, culminate in an appealable action against a person
with standing to appeal to the MSPB. For example: minor discipline, warnings or other claims
may form the basis of a non-mixed case, but ultimately lead to suspension in excess of 14 days
or termination; similarly, an allegedly discriminatory performance evaluation and subsequent
placement on a performance improvement plan are non-mixed claims that may culminate in a
denial of a within-grade promotion, or even removal, both of which are appealable to the
MSPB.”

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Similarly here, Complainant’s harassment claim involves matters that led up to her demotion,
but these matters taken together give rise to a cause of action, separate from the demotion
claim, which Complainant may prosecute independently.

CONCLUSION

Accordingly, the Agency's final order implementing the AJ’s decision dismissing
Complainant's complaint is VACATED. The complaint is hereby REMANDED to the
Agency for further processing in accordance with this decision and the Order below.

ORDER

The Agency shall submit to the Hearings Unit of the Atlanta District Office the request for a
hearing and a copy of the complaint file within fifteen (15) calendar days of the date this
decision becomes final. The Agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been transmitted to the
Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614

(EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that
person by his or her full name and official title. Failure to do so may result in the dismissal of
your case in court. “Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.

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RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 26, 2013
Date