01200523740120064932
01-26-2007
Peter T. Durmer, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Peter T. Durmer,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration)
Agency.
Appeal Nos. 0120052374, 0120064932
Agency Nos. 1-04-1007, DOT-2005-18914-FAA-01
DECISION[1]
Complainant filed two appeals from the agency's final decisions concerning
his equal employment opportunity (EEO) complaints alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
� 621 et seq. The appeals are deemed timely and are consolidated pursuant
to 29 C.F.R. � 1614.606. For the following reasons, the Commission vacates
and remands Agency No. 1-04-1007 (Complaint 1) and affirms Agency No. DOT-
2005-18914-FAA-01 (Complaint 2).
ISSUES PRESENTED
The issues presented herein are whether:
(1) the agency properly issued a final agency decision (FAD) with
respect to Complaint 1, where complainant requested a hearing
before and EEOC Administatrive Judge (AJ); and
(2) the EEOC has jurisdiction over Complaint 2 where a Merit Systems
Protection Board (MSPB) AJ issued a decision on December 15,
2005.
BACKGROUND
Complaint 1
Complainant filed a formal complaint of discrimination on October 30, 2003,
alleging that he was subjected to discrimination on the bases of age
(D.O.B. 04/21/44) and reprisal for prior protected EEO activity when: (1)
on September 4, 2003, he was issued a leave restriction letter; (2) on
August 2, 2003, his training was suspended, and he was placed in Skill
Enhancement Training; and (3) on August 28, 2003, his training was
terminated. Complainant also alleged that he was subjected to harassment by
a coworker from approximately August 1, 2003 through October 15, 2003.
In a letter dated November 25, 2003, the agency accepted claims (1) through
(3). The agency made no reference in the acceptance letter to
complainant's claim of harassment, and complainant did not challenge the
agency's identification of the claims. The agency then conducted an
investigation, and on July 22, 2004, provided complainant with a report of
investigation and notified him of his right to request a hearing before an
EEOC AJ or a final agency decision. Soon thereafter complainant submitted,
by certified mail, a request for hearing to the EEOC New York District
Office (NYDO). A return receipt card reflects that the NYDO received the
request on August 12, 2004. The agency, however, believing that
complainant failed to respond, issued a final agency decision on December
23, 2004, finding no discrimination.
On appeal, complainant provides a copy of the return receipt card and
requests that we remand Complaint 1 to an EEOC AJ for a hearing. The
agency submits no statement on appeal.
Complaint 2
Complainant filed a second formal complaint on December 1, 2004, alleging
discrimination on the bases of sex, age, and reprisal when: (1) after not
receiving adequate training time to certify, and not being allowed to train
during the busy summer months, he was terminated on July 21, 2004; and (2)
he was verbally harassed by a coworker, but management failed to take
action. The agency accepted Complaint 2 for investigation on February 16,
2005.
On August 4, 2006, the agency provided complainant with a report of
investigation for Complaint 2, and again informed him of his right to
request a hearing before an EEOC AJ or a final agency decision.
Complainant timely requested a hearing before an EEOC AJ.
By Amended Order, dated March 24, 2006, the EEOC AJ found that the EEOC
lacked jurisdiction over Complaint 2 under the doctrine of res judicata
(claim preclusion) because the subject claims had already been decided in a
prior administrative forum. Specifically, the EEOC AJ noted that, by
decision, dated December 15, 2005, the MSPB AJ analyzed the removal and
harassment claims on the basis of age discrimination, although he did not
address discrimination on the bases of sex and/or reprisal for prior EEO
activity. [2] On August 4, 2006, the agency fully implemented the EEOC
AJ's Amended Order, dismissing Complaint 2.
In a statement on appeal, complainant maintains that he did not file a
mixed case. He further addresses the merits of his claim. The agency
provides no response to complainant's statement.
ANALYSIS AND FINDINGS
Complaint 1
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that complainant has the
right to request a hearing before an EEOC AJ within thirty (30) days of
receipt of the investigative file. Here, complainant provided evidence that
he submitted his request for a hearing to the appropriate EEOC office in a
timely manner. He specifically provided a return receipt card which
reflects that the NYDO received his request on August 12, 2004. Therefore,
the Commission vacates the agency's final decision and remands Complaint 1
to the agency in accordance with the Order below.
Complaint 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the
agency shall dismiss a complaint that states the same claim that is pending
before or has been decided by the agency or Commission. EEOC Regulation 29
C.F.R. � 1614.107(a)(1) embodies the doctrine of res judicata. This
doctrine treats a judgment, once rendered, as the full measure of relief to
be accorded between the same parties on the same claim, or cause of action,
and issues relevant to that claim. When a judgment is rendered in favor of
the agency, the complainant's claim is extinguished, and the judgment then
acts as a bar. See Magallanes v. Department of Justice, EEOC Request No.
05900176 (July 13, 1990). Moreover, the doctrine of res judicata includes
not only matters expressly raised, but also matters that were not, but
might have been raised. See Nevada v. United States, 463 U.S. 110, 129-30
(1983).
Review of the MSPB AJ decision reveals a full adjudication of complainant's
removal and harassment claims, to include an administrative hearing. The
Commission determines that although complainant did not raise the bases of
sex and reprisal for prior EEO activity before the MSPB, Complaint 2 claims
are barred by the doctrine of res judicata. Specifically, we find that the
MSPB fully litigated the merits of the removal and harassment claims, and
complainant could have included the bases of sex and reprisal for prior EEO
activity, but chose not to do so. For the aforesaid reasons, we find that
the EEOC AJ properly dismissed Complaint 2, pursuant to the doctrine of res
judicata. The Commission therefore affirms the agency's implementation of
the EEOC AJ's Amended Order, dismissing Complaint 2.
ORDER
With respect to Complaint 1 (Agency No. 1-04-1007), the agency shall submit
to the Hearings Unit of the EEOC New York 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in an
appropriate United States District Court within ninety (90) calendar days
from the date that you receive this decision on both that portion of your
complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the agency
issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil
action, 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
___01/26/07_______________
Date
-----------------------
[1] Due to a new data system, your cases have been redesignated with the
above referenced appeal numbers.
[2] On January 12, 2005, complainant filed an appeal with the MPSB in which
he challenged his removal and harassment and alleged discrimination on the
basis of age. Following a hearing, the MSPB AJ issued a decision in which
he addressed complainant claims as described herein, as well as reprisal
for prior union activity, pursuant to 5 U.S.C. � 2302(b)(9).