Preston B.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 17, 2020

2020005091 (E.E.O.C. Nov. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Preston B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005091 Hearing No. 540-2019-00176X Agency No. 4E-852-0232-17 DECISION On June 8, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated May 8, 2020, fully implementing a Commission AJ’s decision dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Carrier (City), Q-02, Steps M/N/O at the Highland Post Office in Albuquerque, New Mexico. On December 19, 2017, Complainant filed an equal employment opportunity (EEO) complaint, as amended, alleging that the Agency subjected him to discrimination and harassment based on his race (African-American), sex (male), color (Black), disability, age (50), and reprisal for prior 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020005091 2 protected EEO activity under Title VII, the Rehabilitation Act, and as applicable the ADEA when, in relevant part: 1. On or about August 19, 2017, the Agency did not raise his pay to the correct amount to reflect his promotion; 2. On October 18, 2017, management posted a Request for or Notification of Absence form (PS 3971) in his work area stating he was 3 hundredths of a minute late; 3. On November 21, 2017, during a REDRESS meeting, Agency counsel made negative comments to Complainant's representative (“you're really good at shoveling shit... your full of shit. You're such a shit talker") and during the same meeting Complainant’s boss asked to see his socks and later directed his supervisor to nitpick the color of his postal shirt; 4. On or about December 13, 2017, the Agency refused to rectify his back-pay issue; 5. On a date to be specified, management docked his pay when they charged him with 6.15 hours of Leave without Pay (LWOP); and 6. On or about April 20, 2018, management took 24 hours of sick leave dependent care from him; On May 5, 2020, an EEOC Administrative Judge (AJ) granted the Agency’s motion to dismiss issues 1, 5, and 6 for the reasons argued. The Agency argued that issue 1 was previously litigated before the Merit Systems Protection Board (MSPB). While acknowledging the litigation addressed whether the Agency discriminated against Complainant based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Agency argued that the res judicata doctrine of issue preclusion applied because the MSPB found the Agency took this action because it properly applied its promotional pay rules. The Agency argued that issues 5 and 6 were closed by a settlement agreement dated July 3, 2018, which the Commission in EEOC Appeal No 2019000421 (Feb. 25, 2020) found was implemented. Thereafter, the Agency issued a final order implementing the AJ’s decision. The instant appeal followed. On issue 1, Complainant argues that USERRA, not the statutes enforced by the EEOC, were litigated before the MSPB. He argues that the Commission previously reversed the dismissal of issues 5 and 6, and did not investigate issues 2 - 4. ANALYSIS AND FINDINGS As an initial matter, we take administrative notice that in EEOC Appeal No. 0120181045 (May 31, 2018), the Commission affirmed the Agency’s dismissal of issues 2 - 3, and merged issue 4 into issue 1 because it was the same as issue 1, not an independently actionable claim. 2020005091 3 Since no request to the Commission was made to reconsider this, issues 2 - 4 are closed. We will not further address them. A doctrine under res judicata is collateral estoppel or issue preclusion. It recognizes that suits addressed to particular claims may present issues relevant to suits on other claims. Thus, issue preclusion bars the re-litigation of issues actually adjudicated and necessary to the judgment in a prior litigation between the parties. In the administrative process, these doctrines apply to claims which were fully litigated before the MSPB. Syndor v. Office of Personnel Management, EEOC Appeal No. 0120101050 (Jun. 3, 2010). Following a telephonic hearing, on February 14, 2018, an MSPB AJ issued an initial decision finding that the Agency did not violate USERRA when during Complainant’s detail beginning on June 28, 2017, and then after his permanent promotion to the detail position on August 19, 2017, it paid him Level 2, Step N rather than Level 2, Step O. It based this finding on its interpretation and application of complex Agency promotion, repromotion, and pay rules, which it found were followed. The MSPB found that while the Agency momentarily moved Complainant back to the M step when he was promoted in August 2017, it quickly corrected this. MSPB Initial Decision DE-4324-18-0025-I-1 (Feb. 4, 2018). On issue 1, Complainant claims that the Agency discriminated against him based on his race, color, sex, disability and reprisal for prior protected EEO activity as evidenced by his not being correctly paid. But because the MSPB’s finding that Complainant was correctly paid was necessary to its determination that the Agency did not violate USERRA, Complainant is collaterally estopped from asserting he was incorrectly paid. Accordingly, issue 1 is dismissed under the res judicata doctrine of collateral estoppel or issue preclusion. We agree with the Agency that issues 5 and 6 are resolved and closed by a settlement agreement dated July 3, 2018. The Agency’s final order is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2020005091 4 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. 2020005091 5 You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 17, 2020 Date