Judy A. Fullmer, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMar 3, 2005
01a34828 (E.E.O.C. Mar. 3, 2005)

01a34828

03-03-2005

Judy A. Fullmer, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.


Judy A. Fullmer v. Department of Health and Human Services

01A34828

March 3, 2005

.

Judy A. Fullmer,

Complainant,

v.

Mike Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01A34828

Agency No. 1HS-664-94

DECISION

Complainant appeals the dismissal of 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. In her complaint

(complaint number 1HS-664-94) , complainant alleged that she was subjected

to discrimination and harassment on the bases of race (Native American)

and national origin (Chippewa) when: (1) on February 11, 1994, management

took her office keys, denied her computer access, and denied her access

to the patient care information system while she was on detail; (2) on

March 23, 1994, she was reassigned from the position of Medical Clerk

(GS-679-5) to the position of Contract Representative (GS-962-5); (3)

on May 3, 1994, she was informed by management as to what she could

and could not do with respect to her union duties; (4) on May 5, 1994,

she was informed by management that she was expected to handle the same

volume of work as she did when the office was not short of staff; (5)

on May 5, 1994, management allowed another employee to give her client

new work assignments instead of going through her first-line supervisor;

and (5) on May 13, 1994, she was given a memorandum from management

informing her of her working hours and what she could and could not do

before and after work.

Complainant filed a second EEO complaint on December 10, 1999 alleging

a constructive discharge claim. On May 25, 2001, the agency issued a

final decision finding no discrimination. Complainant thereafter, on

July 4, 2001, filed an appeal with the Merit Systems Protection Board

(MSPB) and requested a hearing. In the MSPB appeal form, complainant

asserted the constructive discharge claim, as well as, allegations from

the present EEO complaint. Also, as part of the MSPB proceedings,

complainant entered the complaint and affidavits taken from the EEO

Report of Investigation for the present complaint to be part of her

hearing exhibits. The MSPB administrative judge conducted a hearing and

found the issues to be inextricably intertwined, discussed the entire

matter, and ultimately concluded that the MSPB lacked jurisdiction.

After the completion of the EEO Report of Investigation for the present

complaint, the matter was forwarded to an EEOC Administrative Judge (AJ)

for a hearing. Following the MSPB decision referenced above, the agency

moved for dismissal on the basis of res judicata. The AJ granted the

agency's motion. The AJ concluded that dismissal was proper because

(1) complainant had previously raised the present claims before the

MSPB in an attempt to support her claim of constructive discharge; and

(2) the MSPB found complainant's constructive discharge complaint and

the present complaint to be inextricably intertwined. Accordingly,

the AJ found that the doctrine of res judicata precludes complainant

from litigating these claims a second time.

We find that the AJ erred in dismissing the present complaint. Since the

MSPB lacked jurisdiction to hear the MSPB appeal, it could not properly

adjudicate the merits of the present complaint. Accordingly, the

principles of res judicata do not apply. See Caple v. United States

Postal Service, EEOC Request No. 05940808 (March 28, 1996), citing

Caple v. United States Postal Service, No. 92-3645, slip op. at 5

(Fed. Cir. Sept. 7, 1993).

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission reverses

the AJ's dismissal and remands the matter to the agency in accordance

with this decision and the Order below.

ORDER

The agency shall submit to the Hearings Unit of the Seattle District

Office the request for a hearing within fifteen (15) calendar days of

the date this decision becomes final. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit 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 (K0501)

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 19848,

Washington, D.C. 20036. 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (R0900)

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.

RIGHT TO REQUEST COUNSEL (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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 3, 2005

__________________

Date