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

Equal Employment Opportunity Commission

Aug 22, 2019

0120181701 (E.E.O.C. Aug. 22, 2019)

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

Hae T.,1
Complainant,

v.

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

Appeal No. 0120181701
Hearing No. 480-2016-00678X
Agency No. BOP-2015-02177

DECISION

On April 25, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency’s final order dismissing 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.2 For the following reasons, the Commission
AFFIRMS the Agency’s final order.
BACKGROUND

On October 20, 2015, Complainant who worked as a Correctional Officer at the Agency’s Federal
Correctional Complex in Victorville, California, filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (Hispanic)3, sex (female), and reprisal for

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.
2 On March 29, 2018, an Equal Employment Opportunity Commission Administrative Judge (AJ)
issued a decision dismissing Complainant’s complaint. The Agency did not issue a final order
implementing the AJ’s decision. Consequently, by operation of our regulations, the AJ’s decision
became the Agency’s final order after the expiration of forty (40) days. Although Complainant
filed an appeal before the 40 days expired, we find that this matter is now ripe for adjudication.
3 The Commission does not consider the term “Hispanic,” to be a description of race, but one of
national origin. Accordingly, we will refer to Complainant’s claim as national origin, not race in
this decision.
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prior EEO activity when: on August 26, 2015, she was subjected to sexual harassment while
monitoring the unit door when an inmate rubbed his left forearm against [her] breast with enough
force to push [her] off balance. Complainant alleged she was subjected to further harassment when
management failed to show care and concern regarding the alleged incident.

By letter dated September 12, 2016, the Agency informed Complainant that the Los Angeles
District Office of the EEOC certified a class complaint against the Agency. The class complaint
alleged that current and former female correction officers at the Agency had been subjected to a
hostile work environment because of extreme inmate harassment towards female correction
officers, and that the Agency denied equal opportunity in a variety of its employment practices.
The class included all women working at the Agency from June 21, 2011 to May 29, 2015, who
alleged that they were denied specific training courses, and/or subjected to sexual harassment by
inmates. The Agency informed Complainant that her alleged basis of sex discrimination fell within
the pending class complaint, i.e., Ferguson et al. v. DOJ, (EEOC Hearing No. 480-2012-00375).
The Agency also stated that it would resume processing her Complainant claims based on national
origin and reprisal discrimination.

At the conclusion of the investigation on the claims of national origin and reprisal discrimination,
the Agency provided Complainant with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge. On October 31, 2017, the AJ issued
notice of receipt of a hearing request. On March 2, 2018, the Agency filed a Motion to Hold the
Complaint in Abeyance, arguing that Complainant’s allegations of national origin and reprisal
should be held in abeyance pending the procession of the Ferguson case. Complainant filed a
Motion to Bifurcate, as well as, an opposition to the Agency’s Motion to Hold the Complaint in
Abeyance. By order dated March 29, 2018, the AJ concluded that the Ferguson case was
controlling and the pursuit of the other claims on the same issue should not be bifurcated because
the Ferguson sexual harassment class complaint was controlling. In the interest of forum economy,
the AJ made a decision to suspend processing of Complainant’s entire complaint until resolution
of the Ferguson class complaint. On April 9, 2018, Complainant filed a Motion for
Reconsideration, to which the Agency filed an opposition on April 12, 2018. On April 17, 2018,
Complainant was advised that there were no procedures for what she was requesting, and that the
case was closed pursuant to the March 29, 2018 order. The instant appeal followed.

On appeal, Complainant argues that the Agency improperly held her national origin and reprisal
claims in abeyance as part of the Ferguson class complaint. Additionally, she claims that her
allegations regarding Agency employee conduct as they relate to her allegations of harassment
were improperly subsumed as the Ferguson class complaint only addresses inmate conduct.
Additionally, Complainant contends that, in the event she is not allowed to proceed with any of
her claims until the conclusion of the Ferguson class complaint, she should be allowed to reinstate
all of her claims that were not adjudicated for any reason. Finally, Complainant requests that an
order be issued to ensure that notification of deadlines be disseminated to her attorney of record.

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The Agency requests that the Commission uphold the AJ’s decision to subsume Complainant’s
allegations of sexual harassment and hold her national origin and reprisal claims in abeyance until
conclusion of the processing of the Ferguson class complaint, because bifurcating the claims and
processing them simultaneously could result in conflicting decisions and that this is not in the best
interest of judicial economy.

ANALYSIS AND FINDINGS

As an initial matter, we note that 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). Equal Employment Management Directive-110 (EEO MD-110), Ch. 8 § III(b) (rev. Aug.
2015) 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.”

On May 8, 2014, an Administrative Judge granted class certification in Ferguson et al. v. DOJ,
which defined the class as all women employed by FCC Victorville from 45 days before August
5, 2011 as to the denial of training claim and 45 days before September 14, 2011 as to the sexual
harassment claim (because the EEO proceedings were initiated on different dates), to the present
(or such date as the Agency may demonstrate that the allegedly unlawful practice concluded), who
have been denied use of force training and/or subject to sexual harassment, as alleged in the
complaint and clarified in this decision. The Agency declined to implement the decision and
appealed the matter to the Office of Federal Operations. The Commission agreed with the AJ’s
definition of the class and the Ferguson claims, as stated above. Accordingly, the Commission
reversed the Agency’s final order rejecting the AJ’s certification of the class. Ferguson et al. v.
Dep’t of Justice, EEOC Appeal No. 0720140032 (May 29, 2015).

In the present case, we find the Agency properly held Complainant’s national origin and reprisal
claims in abeyance pending the outcome of the Ferguson class complaint. In reaching this
conclusion, we note that Complainant’s claim of discrimination involves one incident of alleged
harassment, i.e., on August 26, 2015, she was subjected to sexual harassment when an inmate
rubbed his left forearm against [her] breast with enough force to push [her] off balance, and the
Agency failed to show care and concern regarding the alleged incident. Whether the alleged
harassment was based on sex, national origin, or reprisal, we find that it involves the same set of
underlying facts and legal analysis. For example, as noted by the Agency, “how the Agency
responded to the alleged inmate harassment is key in determining whether there is a basis for
imputing liability to the Agency for an inmate’s actions.” On appeal, the Agency also noted, and
we agree, that:

[w]hether Appellant was retaliated against or discriminated against based on her
sex or race would necessarily depend on whether the Agency’s response to the
alleged inmate harassment was ‘appropriate corrective action.’ If it was
‘appropriate corrective action’ in Ferguson it cannot be discriminatory standing on
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its own because it would constitute a legitimate non-discriminatory reason for the
Agency’s action. The Agency’s response to allegations of inmate sexual
harassment to include the writing and processing of incident reports and conducting
of medical assessments, cannot be separated out from the allegation of inmate
harassment itself because the response speaks to the Agency’s legitimate non-
discriminatory reasons for its actions as well as to whether the Agency took prompt
corrective action when notified of alleged inmate harassment.

Finally, we agree with the Agency that:

[t]he factual and legal issues at play in the Ferguson class and the [instant case]
affect the Agency’s ability to defend both cases. Allowing competing litigation on
the same factual and legal issues could result in conflicting determinations of
legitimate nondiscriminatory rationale and whether the Agency took prompt and
appropriate corrective action. Such conflicting rulings would adversely affect the
Agency’s ability to defend itself in both cases.

In sum, the Commission finds that the AJ properly determined to hold the subject claims of
national origin and reprisal discrimination in abeyance because it involves matters that are identical
to those involved in the Ferguson class complaint. Accordingly, the Agency’s final order 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.
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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 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

August 22, 2019
Date