OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
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ZIGGY BAJBOR, Complainant, v. Case No. 01-AC-377(RP) Date: May 30, 2003 OFFICE OF THE ARCHITECT OF THE CAPITOL Respondent .
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Before the Board of Directors: Susan S. Robfogel, Chair; Barbara
L. Camens, Alan V. Friedman; Roberta L. Holzwarth; Barbara Childs
Wallace, Members.
DECISION OF THE BOARD OF
DIRECTORS
I. Introduction
This reprisal case, brought under Section 405
of the Congressional Accountability Act ("the CAA") (2
U.S.C. §1405), is before the Board pursuant to the Complainant
Employee's petition for review of the Hearing Officer's dismissal
of the complaint on the pleadings. The issue on appeal is whether
the alleged Respondent Employer action, denying Complainant's request
to inspect two merit promotion vacancy files in reprisal for the
Complainant's prior exercise of his rights under the CAA, stated
an actionable claim of reprisal. The Complainant requested those
files in connection with his pending earlier discrimination complaint
before another Hearing Officer. The Hearing Officer in this matter,
ruling from the bench, concluded that the alleged Respondent action
was not encompassed by the Act's anti-reprisal provision (Section
207 of the CAA, 2 U.S.C.§1317). The Hearing Officer also concluded
that the earlier case Hearing Officer's discovery ruling precluded
a collateral challenge to that action in this subsequent case.
While we affirm the Hearing Officer's dismissal
of the Complaint, we do so solely on the basis that sound policy
and judicial economy dictate that the Complainant pursue his discovery
connected claim in the earlier Office of Compliance proceeding in
which it arose. In the particular facts of this case, we hold that
the Architect's denial of Complainant's document request, requiring
him to obtain it in the discovery process, does not create an independent
retaliation claim. We do not adopt the Hearing Officer's interpretation
regarding the protective scope of Section 207 of the CAA ("Section
207"), nor do we decide whether the subject denial of merit
promotion files could constitute an actionable retaliation claim
if it occurred outside of the CAA dispute resolution process. We
reserve ruling on these questions until an appropriate case arises
in the future.
II. Statement of the Case
A. Background1
The Complainant, in connection with his earlier
age discrimination complaint2 before the Office of Compliance,
requested from the Respondent ("the Architect") inspection
of two vacancy merit promotion files ("the Files"). The
Complainant sought those Files to prepare for the prosecution of
his complaint before a CAA hearing officer. Ostensibly, the Files
could have informed the Complainant regarding the regularity of
the promotion process and how his qualifications compared with those
of his more successful competitors.
When the Architect did not respond to the Complainant's
request, he sought the Files through discovery. Hearing Officer
Sylvia Bacon examined the files in camera
and released them to the Complainant in redacted form.3
The Complainant alleges, in this separate and
subsequent reprisal complaint, that the Architect did not voluntarily
provide him with the Files in accord with its regulations; and,
instead, required him to expend time and expense to acquire the
Files through discovery: in reprisal for his filing of complaints
under the CAA.
B. Hearing Officer's Decision
After reviewing written briefs, and hearing oral
argument, Hearing Officer Warren King dismissed the complaint on
the record (Hearing Tr. Pp.38-40). The Hearing Officer held that
"[T]he case law is such that the conduct that must be shown
to be an adverse action must be more severe than that which is shown
here. . . . . I'm satisfied that under the case law that a denial
of the promotion file does not rise to the level of an adverse action
within the meaning of that term as defined by dozens and dozens
of courts."
The Hearing Officer relied upon the D.C. Circuit's
unpublished Heamstead4
decision "and dozens of other cases that stand for the same
proposition" in deciding that this complaint did not fall within
the scope of the CAA anti-reprisal protections.
The Hearing Officer also opined that this complaint
might be misdirected because any issue regarding the Complainant's
entitlement to inspect the Files had been decided by Hearing Officer
Bacon in Complainant's underlying age discrimination complaint case,
and that her decision to redact the Files could be raised before
the Board in the appellate stage of that case.
III. Positions of the Parties
A. Appellant/ Complainant
Counsel acknowledged to the Hearing Officer that
the Complainant would not have plead an actionable reprisal claim
under Title VII or the Age Discrimination in Employment Act ("ADEA")
because those statutes' interpretative case law requires that a
reprisal action be more adverse than that herein so as to be actionable.
However, the Complainant submits that the CAA's anti-reprisal provision
is much broader than are its Title VII and ADEA counterparts and
he points out that Section 201 of the CAA (2 U.S.C. §1311)
mandates that "All personnel actions affecting covered employees
shall be made free from any discrimination . . .". The Complainant
urges the Board not to follow Heamstead
and related judicial precedent because they were wrongly decided
in failing to consider the CAA's uniquely expansive anti-reprisal
provision. Complainant contends that the CAA proscribes management
action attributed to retaliatory motivation and asks the Board to
be guided by National Labor Relations Board precedent in assessing
what alleged reprisals may be entertained under a reprisal claim.
Complainant asserts that the Architect's refusal
to respond and voluntarily provide him with the requested merit
promotion files did constitute an adverse action against him because
it impeded his ability to ascertain whether he had a cause of action
and whether the merits of that cause warranted further pursuit.5
Therefore, Hearing Officer Bacon's discovery ruling in his underlying
age discrimination complaint case, Complainant argues, is not dispositive
of this
case.
B. Appellee/Architect
The Complainant failed to allege that he suffered
any change in the terms and conditions of his employment because
the Architect denied him access to the Files. Further, Hearing Officer
Bacon's discovery ruling on the Files is preclusive in this proceeding.
The Heamstead
case, supra, is controlling because
the Court of Appeals for the District of Columbia affirmed a district
court's dismissal of a complaint against the Architect involving
an identical CAA reprisal allegation. The appellate court concluded
that the Files denial to the employee fell below the legal standard
required to be an "adverse personnel action" because:
it is neither severe or pervasive
enough to qualify as a basis for supporting a Title VII retaliation
claim; and no evidence was presented to the court showing that the
employee suffered from any negative employment consequences based
on his exercise of protected activity.
IV. Analysis and Conclusions
Just as in an earlier case6 the Board
chooses to decide this matter on a dispositive ground not requiring
it to define the scope of Section 207 protections. We affirm the
dismissal of this complaint on policy and judicial economy grounds
drawn from the spirit of the issue preclusion doctrines of collateral
estoppel and res judicata. While a final decision has not yet been
rendered in the Complainant's underlying discrimination case we
believe that litigation of his document access claims should be
restricted to that proceeding in which they arose.
A. Collateral Estoppel
The Complainant sought the Files in relation
to his earlier age discrimination non-promotion complaint pending
before CAA Hearing Officer Sylvia Bacon. Respondent required the
Complainant to seek the Files through pre-hearing discovery by declining
to release them voluntarily. Hearing Officer Bacon, after an in
camera examination, ordered the Files released in redacted
form. The Respondent complied. Complainant filed this complaint,
alleging that the Respondent engaged in retaliation by not voluntarily
releasing the Files.
Section 406(e)&(f)
of the CAA (2 U.S.C. §1405(e)&(f))
provides for discovery in these proceedings, subject to a hearing
officer's determinations on objections to the production of subpoenaed
testimonial and documentary evidence. The Office's Procedural Rules,
at Subpart F., prescribe the discovery process. The Procedural Rules
broadly authorize a hearing officer to impose sanctions (§7.02)
on any party, including, but not limited to, the payment of attorney's
fees and reasonable expenses, for failure to comply with a discovery
order.
We, therefore, believe that the Complainant's
exclusive avenue for redress regarding his document request was
in that very underlying proceeding. The Complainant was at liberty
to request that the hearing officer impose sanctions on the Respondent
if he felt that the Respondent's discovery position or actions so
warranted. Further, the hearing officer's rulings on such a request
would have been appealable to the Board.
The compelling interests of judicial economy
and case or issue finality are effected through the preclusive legal
doctrines of res judicata and collateral
estoppel. In a generic sense res judicata bars a second suit
if: (1) there is an identity of parties (or their privies); (2)
there has been an earlier final judgment on the merits of a claim;
and (3) the second claim is based on the same set of transactional
facts as the first. Under the doctrine of collateral
estoppel, when the second action is predicated upon a different
cause of action, the judgment in the prior suit precludes relitigation
of issues actually litigated and necessary to the outcome of the
first action. See, International Air Response
v United States, 2003 U.S. App.. LEXIS 6552 (Fed. Cir. 4/07/2003);
Oakerlee Fernandez v. Office of Personnel
Management, 2003 U.S. App. LEXIS 434 (Fed. Cir.01/08/2003).
Preclusion law is designed to protect litigants,7 and
the courts,8 from the burdens of duplicative litigation.
In the underlying proceeding, and this complaint
case, the parties are identical. The Complainant litigated, through
discovery, his demand for the Files in the underlying case. That
hearing officer ruled by releasing redacted files to the Complainant.
This complaint, in essence, is the Complainant's challenge to the
Respondent's litigating tactics in the underlying case.
We hold, under policies favoring judicial economy
and discouraging duplicative litigation, that the Complainant's
exclusive avenue for redress of this claim was before Hearing Officer
Bacon and the Board in the underlying case. He may not resurface
it as an independent claim of retaliation through this, a new complaint.
ORDER
Pursuant to Section 406(e) of the Congressional
Accountability Act and Section 8.01(d) of the Office's Procedural
Rules, the Board affirms the Hearing Officer's dismissal of the
complaint, but for the reasons stated in this opinion.
It is so ordered.
_________________________
Susan S. Robfogel, Chair
_________________________
Barbara L. Camens, Member
_________________________
Alan V. Friedman, Member
_________________________
Roberta L. Holzwarth, Member
____________________
Barbara Childs Wallace, Member
Issued, Washington, D.C.: May 30, 2003
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of May
2003, I delivered a copy of this Decision of the Board of Directors
to the following parties by the below identified means:
First-Class Mail Postage-Prepaid
Jeffrey H. Leib, Esq.
Attorney at Law
5104 34th Street, N.W.
Washington, D.C. 20008
First-Class Mail Postage-Prepaid
& Facsimile Mail (w/o Hearing Officer Decision)
Edgard Martinez, Esq.
Office of Architect of the Capitol
Office of Employment Counsel
Ford House Building, Room H2-202
Washington, D.C. 20515
___________________
Kisha L. Harley
Office of Compliance
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