0120150317
04-02-2015
Complainant, v. Katherine Archuleta, Director, Office of Personnel Management, Agency.
Complainant,
v.
Katherine Archuleta,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120150317
Hearing No. 551-2014-00091X
Agency No. OPM-2013026
DECISION
On October 27, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge's (AJ) decision dated August 28, 2014, which became the Agency's final action after it did not issue a final order, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Safety and Occupational Health Manager, GS-14, with the Department of Energy (employer), Southwestern Power Administration (SWPA), in Tulsa, Oklahoma. Complainant was not an employee of the Office of Personnel Management (the Agency).
On June 18, 2013, Complainant filed a formal complaint, as amended, alleging that the Agency discriminated against her based on age (70), sex (female), and reprisal for prior equal employment opportunity (EEO) activity when:
1. On April 16, 2013, she learned it closed her classification appeal, and
was discriminated against based on reprisal for prior EEO activity when:
2. On August 22, 2013, it denied her classification appeal for her current position, Safety and Occupational Health Manager, GS-14.
On September 8, 2000, Complainant and her employer reached a settlement agreement which closed two civil actions she filed, one in the United States District Court for the Northern District of Oklahoma, and one in the United States Court of Federal Claims. The settlement agreement contained the caption of the District Court,1 with the designation "Not to be filed." It provided, in relevant part, that "Defendant will, through proper channels, structure a new GS-14 position to be filled by Plaintiff.... Plaintiff will fill such position effective October 8, 2000, as a grade GS-14."
Complainant has contended that while her employer paid her at the GS-14 level in jobs labeled GS-14, it never complied with their settlement agreement because the duties and responsibilities of her jobs amounted to less than GS-14 work, thwarting her ability to advance.
Complainant was reassigned to position of Aviation, Environmental, Safety and Health Program Manager, GS-301-14, on July 31, 2011. She requested a desk audit, which was conducted by the Office of Personnel Management (the Agency). On October 16, 2012, the Agency determined that the correct classification for the position was GS-018-12, and ordered Complainant's employer to revise the position's series and lower the grade to GS-12.
In response to the Agency's decision, Complainant's employer abolished the downgraded position and on December 30, 2012, reassigned Complainant to a newly created position -- Safety and Occupational Health Manager, GS-018-14. Complainant contended that her employer fraudulently classified this position as a GS-14, like the one before it. She notified her employer that starting on January 13, 2013, she would not return to work until she was placed in a legitimate GS14 position, and never returned to work.2
In its February 2013, response to her employer's compliance report, the Agency found that Complainant's employer did not comply with its October 16, 2012, decision. Specifically, it determined that there was no material difference between the position descriptions of the abolished job and the newly created position. The Agency advised Complainant's employer that it would not close Complainant's classification appeal, and asked for a revised compliance report. In March 2013, Complainant's employer replied that while the two position descriptions were somewhat similar, the new one included specified responsibilities and duties, which it suggested were grade controlling, that Complainant's management was advised they were responsible for assigning these duties and responsibilities to Complainant and they would constitute at least 25% of her time. It also wrote that in June 2013, the new position would be audited to ensure proper assignment and execution of the duties.
Viewing Complainant's employer's response as a commitment to assign Complainant grade controlling work, in April 2013, the Agency wrote Complainant's employer that its concerns were addressed and the classification appeal matter was closed. On August 22, 2013, the Agency denied Complainant's classification appeal on the position she was placed in on December 30, 2012. It explained that under 5 U.S.C. � 5112(b), it is required to conduct its statutory classification appeal duty by making a classification determination based on a consideration of the position's actual duties assigned by management and performed by the employee. The Agency explained this requires a complainant to have performed a range of work over a period of time sufficient to capture cyclical duties or normal variations in the complexity of the work. The Agency concluded that since Complainant had not performed work in her new job (placed in it on December 30, 2012), it could not "ascertain currently facts as to the duties, responsibilities, and classification requirements of" the position, as required by 5 U.S.C. � 5112. Accordingly, the Agency declined to docket and adjudicate a classification appeal on behalf of Complainant until she had performed the work of her new position for a reasonable period of time.
Complainant also filed a civil action in the United States District Court for the Northern District of Oklahoma claiming she was discriminated against (i) based on her sex and reprisal for prior EEO activity when on July 31, 2011, she was reassigned to a position that was fraudulently classified at the GS-14 level, and (ii) based on reprisal when in January 2012, her employer denied her request for a desk audit (which was subsequently conducted by the Agency with a decision thereon on October 16, 2012).
On March 1, 2013, the Court made a decision finding that issue (i) did not constitute an adverse employment action because both the July 31, 2011, position and the one she held before were classified as GS-12 by the Agency. Accordingly, Complainant did not make out a prima facie case of discrimination. The Court added that Complainant's contention that being assigned to a position with GS-12 duties violated the 2000 settlement agreement was barred by the statute of limitations. Next, the Court found that Complainant's employer's decision to deny Complainant a desk audit did not constitute an adverse employment action because the denial did not change her employment status. The Court observed that Complainant contended that she has been denied the opportunity for promotion for the past 12 years, and found that the denial of the desk audit did not harm her chance to be promoted. It noted that the desk audit was ultimately performed, and found that Complainant did not make out a prima facie case of reprisal discrimination. Low v. Department of Energy, 2013 WL 797904 (N.D. OK, Mar. 2013).
In August 2013, Complainant filed a complaint against her employer alleging, in relevant part, that it discriminated against her based on her sex, age, and reprisal for prior EEO activity when it failed to respond to her July 4, 2013, request for a position description appeal to the Agency that would classify her current GS-14 position at a lower grade (the job she was placed in on December 30, 2012). In Complainant v. Department of Energy, EEOC Appeal No. 0120140284 (Feb. 20, 2014), the EEOC affirmed the Agency's dismissal of the complaint. It found, in part, that 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. It recounted that in the above March 1, 2013, decision the Court found that the Agency's decision to deny Complainant a desk audit in January 2012 (for her July 31, 2011, position) was not an adverse action because it did not change Complainant's employment status nor impact her opportunity to be promoted. It found the same was true for the July 4, 2013, denial. Given the Court's decision, the EEOC found that Complainant was collaterally estopped from litigating this issue in the EEO administrative forum.
In the case before us, the Agency accepted and investigated the complaint. Thereafter Complainant requested a hearing before an EEOC AJ, who dismissed the complaint on procedural grounds.
The AJ reasoned that as argued by Complainant, issues 1 and 2 resulted from her 2000 settlement agreement with her employer. The AJ found that the alleged breach of the settlement agreement should go to the tribunal that approved it. Next, the AJ found that the Agency's argument that implementation of a classification decision lies with the employer, not the Agency, was correct. The AJ went on to find that Complainant's complaint failed to state a claim because it was an impermissible collateral attack against the Agency's classification appeal process. The AJ further found that the United States District Court already found that the denial of Complainant's desk audit for her pre-December 2012 position was not an adverse action because it did not change her employment status nor impact her opportunity to be promoted. The AJ found that Complainant was bound by that ruling and cannot re-litigate the claim against a third party with the EEOC. Finally, the AJ found that in EEOC Appeal No. 0120140284, the EEOC found that the December 2012 position was not an adverse position, and estopped Complainant from litigating this issue in the EEO administrative forum.
On appeal, Complainant argues that her prior litigation involved her employer, not the Agency, and this complaint is about the actions of the Agency, not her employer.
In opposition to the appeal, the Agency argues that the AJ's decision should be affirmed.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the AJ that Complainant brought her litigation against the Agency as way to obtain compliance with her 2000 settlement agreement with her employer. As noted above, in a March 2013, decision, a federal District Court found that Complainant's claim that the 2000 settlement agreement was breached is barred by the statute of limitations.
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. United States Postal Service, EEOC Request No. 0520080571 (Jul. 11, 2008). The Court found that Complainant's employer's decision to deny Complainant a desk audit in January 2012, did not constitute an adverse employment action because the denial did not change her employment status. The Court found that Complainant contended that she has been denied the opportunity for promotion for the past 12 years and the denial of the desk audit did not harm her chance to be promoted. This reasoning also applies to Complainant's desk audit claims against the Agency. In EEOC Appeal No. 0120140284, the EEOC cited this Court decision in finding that Complainant was collaterally estopped from litigating in the administrative forum her claim about her employer's failure to respond to her July 4, 2013, request for a position description appeal of the job she was placed in on December 30, 2012. The same reasoning applies regarding Complainant's desk audit claims against the Agency.
Accordingly, the AJ's decision, which became the Agency's final action, is AFFIRMED.
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 (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 (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
April 2, 2015
__________________
Date
1 Some of the factual information recounted herein is derived from documents in two of Complainant's prior appeals - EEOC Appeals No. 0120140284 and 0120141531.
2 The Agency removed Complainant in November 2013 for being absent without leave (AWOL). In Petitioner v. Department of Energy, EEOC Petition No. 0320150007 (Mar. 18, 2015), the EEOC concurred with the Merit Systems Protection Board (MSPB)'s finding of no discrimination on the removal. The MSPB upheld the removal.
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0120150317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150317