0520120223
06-21-2012
Cathy M. Hicks, Complainant, v. Eric H. Holder, Jr. Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Cathy M. Hicks,
Complainant,
v.
Eric H. Holder, Jr.
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520120223
Appeal No. 0120100990
Agency No. P20070397
DENIAL
The Agency timely requested reconsideration of the decision in Cathy M. Hicks v. Department of Justice, EEOC Appeal No. 0120100990 (December 5, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her complaint, Complainant alleged that the Agency discriminated against her based on race, (African-American), sex (female), and age (51) when on May 14, 2007, the Agency did not select her for the position of Associate Warden at the Correctional Institution in Memphis, Tennessee, and in July 2007, when the Agency did not select her for one of three other Associate Warden positions filled in FMC Lexington, USP Atlanta, and FCC Butner. During the relevant time period, Complainant worked at the Agency's Federal Correctional Complex facility in Arkansas. She has since retired from the Agency, having worked in the Bureau of Prisons for 28 years.
In our prior decision, we vacated the Agency's decision and remanded the matter for the Agency to conduct a supplemental investigation. We determined that the record contained inadequate evidence upon which a decision could be made. We noted that the record did not identify the members of the Executive Staff who reviewed the best qualified lists and made recommendations to the Selecting Official. The record also did not contain any evidence of the contents of their discussions, although they were involved in the selection of candidates from the best qualified list. We also noted that the record was inadequate regarding the selectees' profiles, noting that Complainant had alleged discrimination based on race, age, and sex. We found that the Agency had failed to adequately question Complainant's supervisors regarding their perception of Complainant's qualifications and that the Agency had failed to adequately address Complainant's contention that she was directed by a Warden to inform the Regional Director that she would not be retiring. We noted that by the time the July 2007 selections had been made, Complainant had already filed a discrimination complaint for the May 2007 nonselection and questioned whether retaliation played a role in the July 2007 nonselections. Accordingly, we ordered the Agency to allow Complainant "to amend her complaint to add reprisal as a basis" for the July 2007 nonselections and, also, to "provide her with the opportunity to introduce any additional evidence into the record" on the July 2007 nonselections.
In its request to reconsider, the Agency asserts that the decision involves a clearly erroneous interpretation of material fact and law because the decision requires investigation of a claim previously determined to be held in abeyance. The Agency also asserts that to require it to obtain additional evidence five years after the events giving rise to the complaint harms the Agency substantially. The Agency asserts that it conducted a thorough investigation, that Complainant never sought additional evidence through the hearing process at a time when the witnesses were available and when the information was fresh in the memory of witnesses. The Agency also asserts that Complainant's failure to request a hearing, challenge the adequacy of the investigation, and supplement the record prejudices the Agency, noting that Complainant was required to act with due diligence in pursuit of her claims. The Agency asserts that the Selecting Official has since left the Agency and other Executive Staff members.
In response to the Agency's request to reconsider, Complainant contends that the decision did not involve a clearly erroneous interpretation of material fact and law. She asserts that the statistical demographic information for the best qualified applicant was clearly necessary and relevant to the issue of pretext and a fair evaluation of the claim requires demographic information of the other selectees and candidates. Complainant asserts that in the original appeal, she challenged the adequacy of the investigation. She also asserts that her decision to request a hearing did not preclude her right to appeal the Agency decision or reduce the standard the Agency should follow in its investigation of discrimination complaints. Complainant also asserts that the Agency should not be allowed to shift the burden of ensuring that a proper investigation is conducted by mandating that complainants request a hearing to cure inadequate investigations and a deficient record.
Complainant agreed with the Agency that her claim of reprisal should be subsumed in Turner, et al v. Department of Justice, EEOC Appeal No. 0720060041 (July 9, 2007) and held in abeyance.
Regarding the Agency's arguments concerning the supplemental investigation, the Commission reminds the Agency that a request for reconsideration is not a second appeal. The adequacy of the investigative record was already considered in our decision. EEOC Regulation 29 C.F.R. � 1614.108 requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings. An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Here, nonselections were at issue and the investigation lacked relevant evidence concerning the selection process leaving Complainant with an inability to prove pretext and the factfinder unable to make appropriate findings. There can be little doubt that documentary and sworn evidence relative to the selection process and evidence concerning profiles should have been obtained during the investigation. The Agency's failure to develop an appropriate factual record resulted in our ordering a supplemental investigation. Further, we note that records regarding the selection should have been preserved by the Agency once Complainant raised nonselection as a claim.
On the issue of the Turner class complaint, the Commission takes notice that in Turner the Agency has filed an appeal of the EEOC Administrative Judge's decision, dated September 30, 2010, certifying a class in Turner, et al v. Department of Justice, EEOC Appeal No. 0720110008, EEOC Hearing No. 541-2008-00255X. The AJ defined the Turner class as whether Agency employees from January 1, 1994, to the present have been denied promotions based upon the Agency's policy or pattern and practice of retaliating against employees because they engaged in protected Title Vll equal employment opportunity (EEO) activity. The AJ also determined that the scope of the case was nationwide.
In our order in our previous decision, we properly ordered, among other things, that the Agency allow Complainant to add the basis of reprisal to the July 2007 nonselections and, also, to provide Complainant with an opportunity to introduce additional evidence on that basis.1 Although the Agency asserts in its request to reconsider that we erred as a matter of law when we ordered the Agency to investigate a claim previously determined to be held in abeyance in the Turner class complaint, there is no documentation, other than the Agency's assertion, that the Agency had determined that the 2007 nonselection claim, with or without the added basis of reprisal, was being held in abeyance. Further, at the time of our previous order, it does not appear that the Agency would have been holding the claim of reprisal regarding the July 2007 nonselections in abeyance since reprisal was only added as a basis in our previous order. The Commission does recognize that if a claim and basis are identical to that in a class complaint, that claim should be subsumed into the class and held in abeyance. See, e.g. Jenkins v. U.S. Postal Serv., EEOC Appeal No. 0120103482 (Dec. 8, 2010) (disability claim subsumed into class but claims of discrimination based on race and sex processed separately by the Agency because they did not fall within scope of the class); Abuzaidu v. U.S. Postal Serv., EEOC Appeal No. 0120102003 (Sept. 24, 2010). Here, should the Agency determine that the July 2007 nonselections fall within the definition of the Turner class action, the Agency can hold the claim in abeyance as having been subsumed within Turner.2 However, once the individual complaint is again processed, the agency will need to implement our order herein.
After reconsidering the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120100990 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED to conduct a supplemental investigation, which shall include, but not be limited to, the following actions:
1. The Agency shall ensure that the investigator obtains affidavits from relevant Executive Staff members, as well as relevant documentary evidence, consistent with this decision, including evidence concerning the discussions among the Executive Staff and with the Selecting Official regarding the candidates and the recommendations (and the justifications for those recommendations) made by the Executive Staff, as well as the Selecting Official's acceptance or rejection of those recommendations. If Complainant was not recommended for selection, or the recommendation was not accepted, the justifications for those decisions should be addressed. In addition, evidence of the selectees' gender, race and age shall be collected, as well as the gender, race and age of all the candidates on the best qualified list(s) used for these selections. Evidence should also be gathered on why Complainant was instructed to inform the Regional Director that she did not plan to retire, as well as whether or not anyone else was also given similar direction.
2. The Agency shall also allow Complainant to amend her complaint to add reprisal as a basis for the July non-selections, as well as provide her with the opportunity to introduce any additional evidence into the record.
3. The Agency shall ensure that the investigator completes a supplemental investigation within sixty (60) calendar days of the date that this decision becomes final. The Agency shall issue Complainant a copy of the new report of investigation, including the matters added in the supplemental investigation. The Agency shall notify Complainant that within thirty (30) calendar days of receipt of the report of the supplemented investigation, she has the right to request a hearing and decision from an EEOC Administrative Judge, or may request an immediate final decision pursuant to 29 C.F.R. � 1614.110.
A copy of the Agency's notice that transmits the investigative file, and notice of rights must be sent to the Compliance Officer as referenced below.
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.
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 (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
06/21/2012
__________________
Date
1 The Commission has previously held that a complainant may delete or add bases of discrimination during the complaint process without changing the identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F. 2d 455, 462 (5th Cir. 1970). The Commission gives broad application to the court's decision in Sanchez. Complainants are given liberal latitude to clarify the bases of discrimination in their charges, and to add bases of discrimination after filing the charges. Edwards v. Dep't of Defense, EEOC Request No. 05910830 (Dec. 19, 1991; Castillo v. U. S. Postal Serv., EEOC Appeal 01956860 Mar. 22, 1996) (basis of discrimination not made clear until appeal).
2 The Commission has previously held that a complainant may appeal an agency decision to hold an individual complaint in abeyance during the processing of a related class complaint. See Roos v. U.S. Postal Serv. EEOC Request No. 05920101 (Feb. 13, 1992). In addition, Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (Nov. 9, 1999) provides, in relevant part, that "an individual complaint that is filed before or after the class complaint is filed and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint."
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0520120223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120223