0120161999
08-25-2016
Eva M.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eva M.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120161999
Agency No. BFS160170F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 9, 2016, concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Assistant at the Agency's Liberty Center facility in Washington, D.C.
On March 30, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and color (Black) when she learned that employees in Parkersburg, West Virginia, were paid at higher grade levels and have been promoted in recent years.
In its May 9, 2016 decision, the Agency informed Complainant that an investigation would be conducted into the allegations raised in her complaint, but indicated that no final decision would be issued on the merits of her claims because the entire complaint was being held in abeyance as it had been determined that the matter raised in the complaint was subsumed within a pending class action, White et al. v. Department of the Treasury, EEOC No. 531-2015-00025X. The White class action case alleges that the "[w]hite Management/Employees of BFS in Parkersburg, West Virginia are treating black employees of BFS in Hyattsville, Maryland/DC with disparate treatment." The class complaint includes "actions relating to hiring, promotions, demotions, undesirable reassignments, compensations, and increased work assignments."
The instant appeal from Complainant followed. On appeal, Complainant argues that the White class complaint includes other claims that her complaint does not include, and she is not alleging that the discrimination against her was the result of an Agency personnel policy or practice. She also states that she does not work in Hyattsville, Maryland.
ANALYSIS AND FINDINGS
The Commission notes that it 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. United States Postal Service, EEOC Request No. 05920101 (February 13, 1992). In addition, Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (November 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."
Upon review, we find that the Agency is correctly holding Complainant's complaint of race and color discrimination in abeyance. Specifically, in her formal complaint, Complainant alleged that the Agency unlawfully discriminated against her with respect to her pay and promotions, stating that employees in Parkersburg, WV were treated differently. This claim is properly subsumed into the White class action, which raises claims regarding compensation and promotions of individuals in Hyattsville/Washington, D.C. as compared to those in Parkersburg, West Virginia.
Accordingly, the Agency's decision to hold Complainant's complaint in abeyance is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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. 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
August 25, 2016
__________________
Date
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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