Arleen L.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 19, 2019

0120181572 (E.E.O.C. Dec. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arleen L.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181572

Hearing No. 510-2012-00077X

Agency No. BOP-2011-000528

DECISION

By Notice of Appeal postmarked March 19, 2018, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) arguing that she should be entitled
to relief as part of a class settlement because she was improperly excluded from the class certified
in Class Agent, et al. v. Dep’t of Justice, EEOC No. 510-2012-00077X, BOP-2011-000528. On
December 8, 2017, an EEOC Administrative Judge (AJ) issued a decision granting final settlement
approval in this matter.

BACKGROUND

The class action giving rise to the settlement agreement at issue concerns the alleged creation of a
hostile work environment at the Agency's Federal Correction Complex (FCC) Coleman in Florida
when the Agency failed to correct known egregious sexual harassment perpetrated by inmates. AJ
Decision on Class Certification (Apr. 9, 2013) at 2. FCC Coleman is comprised of four institutions,
three of the four which house exclusively male inmates.

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.
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The record indicates that the AJ certified this matter as a class complaint on April 9, 2013. The
class, as set forth by the AJ in her Order on Joint Motion to Redefine Class dated October 28,
2014, is defined as follows:

All women who have worked in the U.S. Department of Justice,
Federal Correctional Complex Coleman, Florida since February 6,
2011, who were allegedly subjected to discriminatory sexual
harassment, except for the period of time that any of these women
served in the position of Warden, Associate Warden, Disciplinary
Hearing Officer, Executive Assistant, Camp Administrator, or
Lieutenant or Captain in the Correctional Services Department or
any of these women worked in the UNICOR or computer services
(IT) departments. Order on Joint Motion to Redefine Class (Oct. 28,
2014).

The parties began settlement negotiations in January 2016 and reached a preliminary agreement
on November 15, 2016. The parties submitted the settlement agreement to the AJ for approval on
December 23, 2016.

On March 31, 2017, the Class Complainants sought to revise the class definition to include
Complainant and three other employees, all of whom worked in UNICOR. Therein, the Class
Complainants argued that the four excluded employees never received notice of the proposed class
and did not have an opportunity to participate. On May 24, 2017, the AJ rejected the Class
Complainants’ argument and denied the motion. The AJ further concluded that, given the
extensive negotiations that had taken place, it was far too late to consider a redefinition of the class.

On December 8, 2017, the AJ entered final approval of a settlement reached between the parties
based on the class, as redefined on October 28, 2014. The AJ’s order noted that an appeal of the
settlement may be filed within 30 days directly to the Commission pursuant to 29 C.F.R. sections
1614.401(c) and 1614.402(a).

ANALYSIS

As a preliminary matter, the Commission will address the timeliness of the instant appeal. The
most generous construction of the facts, as described above, demonstrate that in order to be timely,
Complainant needed to file her appeal with the Commission no later than January 12, 2018, which
was 30 days after the five-day presumption included in the AJ’s decision approving the settlement
agreement. Complainant’s appeal exceeded that time by more than two months. Nonetheless,
assuming Complainant’s appeal is timely, Commission guidance sets forth that a class member or
petitioner may appeal “[a]n [AJ's] decision finding a proposed resolution fair, adequate and
reasonable to the class as a whole if the class member filed a petition to vacate the resolution or
finding that the petitioner is not a member of the class and did not have standing to challenge the
resolution.” Equal Employment Opportunity Management Directive for 29 C.F.R. 1614 (EEO
MD-110) (Aug. 5, 2015) Ch. 9, III (E)(1).
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We further find that the AJ properly found that Complainant is not a class member. In its final
iteration, the definition of the class, as negotiated to by the parties, is in pertinent part:

All women who have worked in [FCC Coleman] since February 6, 2011 who were
allegedly subjected to discriminatory sexual harassment, except for the period of
time that any of these women . . . worked in the UNICOR or computer services
(“IT”) departments.

The record reflects Complainant was working in the UNICOR department. Therefore, she does
not meet the definition of a class member and did not have standing to challenge the resolution.

We also are not persuaded by Complainant's arguments to redefine the class at this juncture. As a
matter of policy, the Commission encourages settlement of EEO complaints at any stage of
processing. See 29 C.F.R. § 1614.603, EEO MD-110, Ch. 6, XIII. While Complainant claims that
she is an absent class member who was not contacted by the Agency, we find this assertion is
insufficient to redefine the AJ's definition of the class.

Following a thorough review of Complainant’s objections, the AJ's decision excluding her from
the class is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 19, 2019
Date