OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
_________________________
ROBERT SOLOMON,
Complainant,
v. Case No. 03-AC-28(CV, RP) Date: September 23, 2004 OFFICE OF THE ARCHITECT OF THE CAPITOL
Respondent.
_________________________
Before the Board of Directors: Susan
S. Robfogel, Chair; Barbara L. Camens, Alan V. Friedman; Roberta
L. Holzwarth; Barbara Childs Wallace, Members.
On March 1, 2004, Hearing Officer
Michael Doheny issued the attached Order Granting Respondent’s
Motion to Dismiss Complaint. The Hearing Officer concluded that
the Complainant’s retaliation claim herein was barred by the
doctrine of claim preclusion, in essence, because it arose and was
addressable in the Complainant’s earlier case before the Office
of Compliance, which resulted in a final Board of Directors’
Decision in the Respondent’s favor. Robert Solomon v.
Office of the Architect of the Capitol, Case No. 02-AC-34(CV,RP)
(October 24, 2003).
We agree with the Hearing Officer’s conclusion
and disposition of this case. The Complainant seeks, through a retaliation
claim brought under Section 207(a)1 of the CAA, 2 U.S.C. § 1317(a),
to relitigate the credibility of a Respondent witness in his earlier
Board adjudicated case. Complainant claims that in his earlier religious
accommodation case, Respondent’s witness provided contradictory
testimony bearing upon Respondent’s undue hardship defense
in reprisal for Complainant bringing that case. Complainant avers
that the witness, despite testifying in his deposition that he lacked
knowledge regarding the costs of engaging a temporary employee to
replace him during his requested annual leave period, also provided
a declaration in that proceeding affirming that such an accommodation
would incur additional costs for the Respondent.
The credibility of the subject testimony and the adjudication of
the underlying undue hardship issue were directly before the hearing
officer in Complainant’s earlier case. Complainant had the
opportunity at that time to confront the witness during cross-examination
with his allegedly inconsistent prior statements. Complainant’s
instant claim, as Hearing Officer Doheny found, is simply Complainant’s
attempt to relitigate the claim that he unsuccessfully presented
in his earlier case. It is plainly barred under the doctrines of
claim and issue preclusion. See Ziggy Bajbor v. Office of the
Architect of the Capitol, Case No. 01-AC-377(RP) (May 30, 2003).
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
this matter.
It is so ordered.
Issued, Washington, D.C.: September 23, 2004
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of September,
2004, 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
& Facsimile Mail
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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