U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 King D.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120162282 Hearing No. 551-2015-00096X Agency No. ARLEWIS14MAY01785 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated July 21, 2016, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Diet Technician at the Agency's Madigan Army Medical Center facility in Joint Base Lewis-McChord, Washington. On June 17, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Black) when on: 1. From September 17, 2012 through August 22, 2014, he was subjected to a hostile work environment, largely based on the actions of Staff Sergeant. 2. On April 14, 2014, he received a rating of four (4) on his civilian performance during the period of October 2012 through December 2013; 3. On June 26, 2014, he was charged with absence without leave from June 24 -25, 2014, after submitting a request for annual leave based on the recommendation of his physician. 4. On July 15, 2014, he received a four (4) on his civilian performance during the period of August 2013 through July 2014. The matter was accepted for investigation. Following the investigation, in February 2015, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (EEOC AJ). While the matter was pending before the EEOC AJ, Complainant was issued a notice of removal. Complainant appealed the removal action to the Merit Systems Protection Board (MSPB) alleging that it constituted racial discrimination. The MSPB Administrative Judge (MSPB AJ) issued an initial decision on July 31, 2015, upholding the Agency's removal action. Complainant filed an appeal with the MSPB Board who remanded the matter for consideration of Complainant's additional claim of unlawful retaliation. On May 13, 2016, the MSPB AJ issued another decision finding that Complainant failed to show that the Agency's removal action constituted unlawful race discrimination and/or retaliation. On March 1, 2016, the Agency moved that the EEOC AJ dismiss the complaint arguing that Complainant alleged the same claims before the MSPB. The EEOC AJ found that the claims raised by Complainant in the instant complaint were raised in the MSPB appeal over which the MSPB AJ took jurisdiction and issued a ruling over the entire matter, including the race-based discrimination leading up to Complainant's eventual dismissal from the Agency. The EEOC AJ noted that Complainant put forth the same allegations, supported by the same facts, to both tribunals. The EEOC AJ indicated that the MSPB AJ did not explicitly analyze Complainant's claim of hostile work environment. However, the EEOC AJ found that the MSPB AJ made findings of fact and law regarding his allegations of race-based mistreatment. While the MSPB AJ only analyzed these facts under the theory of disparate treatment, the EEOC AJ held that claims under the theory of hostile work environment are collaterally estopped based on the full and fair hearing and findings of the MSPB AJ. As such, the EEOC AJ dismissed the matter judge issued pursuant to 29 C.F.R. §§ 1614.107(a)(4). The Agency decided to implement the EEOC AJ's Order of Dismissal. The Agency found that the matter was properly dismissed pursuant to 29 C.F.R. §§ 1614.107(a)(4), (a)(1). The Agency noted that even if the matter had not been dismissed, the totality of the evidence does not support a finding that the alleged actions were motivated by a protected basis. Thus the Agency concluded that Complainant failed to establish his claim of hostile work environment based on his race. This appeal followed. On appeal, Complainant asserted that his claims of harassment were never addressed. ANALYSIS AND FINDINGS The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(4), on the basis that Complainant elected to pursue the same claims with the MSPB AJ. An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non EEO process. On appeal, the Agency asserted that Complainant's appeal should be dismissed under the doctrine of collateral estoppel in that the MSBP AJ's decision address the claims raised in the instant complaint. Under the doctrine of collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Bowles v. U.S. Postal Serv., EEOC Request No. 0520080571 (Jul. 11, 2008). Complainant argued that his claim of harassment has never been addressed. Upon review, the Commission finds that a fair reading of the remaining allegations revealed that Complainant alleged harassment and additional claims of disparate treatment are separate from the termination which was decided by the MSPB AJ. The Commission concludes that these matters were not before the MSPB and should be processed separately as an EEO complaint. As such, the Commission is not persuaded by the Agency's argument that Complainant is collaterally estopped from raising these claims in his EEO complaint. Consequently, the Commission determines that it has jurisdiction over Complainant's harassment and disparate treatment claims, even if these claims encompasses incidents that are related to Complainant's ultimate removal from employment. See Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968 (Jan 8, 2014); Jones v. U.S. Postal Serv., EEOC Appeal No. 0120110192 (June 10, 2011); Hubble v. Dep't of the Interior, EEOC Appeal No. 0120092453 (Feb. 18, 2011); Thomas v. Dep't of Veteran Affairs, EEOC Appeal No. 0120064012 (Dec. 19, 2006). Thus, we find the EEOC AJ and the Agency improperly dismissed the complaint at hand pursuant to 29 C.F.R. § 1614.107(a)(4). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the EEOC's Seattle Field Office the request for a hearing, as well as the complaint file, within thirty (30) 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 of the Seattle Field Office. 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. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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. 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. 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 December 29, 2016 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162282