0420100002
12-15-2009
Harry C. Wallace, Jr., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Harry C. Wallace, Jr.,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Petition No. 0420100002
Appeal No. 0120054012
Agency No. A-01-1021
DECISION ON A PETITION FOR CLARIFICATION
On October 8, 2009, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for clarification filed by the agency
to clarify an order set forth in Harry C. Wallace, Jr. v. Department of
Justice, Appeal No. 0120054012 (August 15, 2008), req. for recons. den.,
EEOC Request No. 0520080827 (December 12, 2008). The petition for
clarification is accepted by the Commission pursuant to 29 C.F.R. �
1614.503(c).
Complainant filed a class complaint in Agency No. A-01-1021, dated July
25, 2001, claiming that Black Assistant United States Attorneys (AUSA) in
the United States Attorney's Office for the Southern District of Florida
were subjected to racial discrimination and reprisal. Complainant sought
certification of a class that included all Black AUSAs who were denied
equal pay, equal benefits, and equal opportunity for promotion.
Complainant's complaint was forwarded to the EEOC's Miami District Office
for a decision on class certification. The EEOC Administrative Judge (AJ)
issued a decision on August 29, 2002 (AJD-1), denying certification of
the class. Also, in her decision, the AJ rejected complainant's reprisal
claim as being outside the purview of the Commission's regulations on
class complaints. In a clarification to her decision, dated September 20,
2002, the AJ informed the agency that complainant's complaint was to be
deemed filed on the date of her clarification letter and instructed the
agency to issue the acknowledgement of receipt of an individual complaint
as required by 29 C.F.R. Section 1614.106(d).
The agency issued a decision, dated October 9, 2002 (FAD-1) which accepted
the AJ's decision denying class certification. On November 20, 2002,
complainant, as class agent, filed an appeal from FAD-1 which denied
class certification. In a decision, dated March 2, 2004, (OFO-1) the
Commission found that the record was not fully developed and remanded
the matter to the agency for further discovery. In OFO-1, the Commission
ordered the agency to cease processing complainant's individual complaint
while discovery was pending and ordered the agency to hold the individual
complaint in abeyance.
After our remand in OFO-1, the AJ issued a decision (AJD-2), dated
February 25, 2005, again denying class certification. The agency fully
implemented the denial of class certification in a decision, dated
April 15, 2005 (FAD-2). Complainant appealed FAD-2 to the Commission.
In a decision, dated, August 15, 2008, (OFO-2), the Commission affirmed
the agency's denial of class certification and remanded the matter to
the agency for processing of the individual complaint.
The record further reveals that on December 23, 2003, after complainant's
November 20, 2002 appeal to the Commission challenging the denial
of class certification, the agency dismissed complainant's individual
complaint pursuant to 29 CFR � 1614.107(a)(7) on the grounds of failure
to cooperate and pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of
untimely EEO Counselor contact. There is no record that the Commission
was given notice of this dismissal while either of complainant's appeals
challenging the denial of class certification were pending before the
Commission.
In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue
a clarification of a prior decision. A clarification cannot change the
result of a prior decision or enlarge or diminish the relief ordered,
but may further explain the meaning or intent of the prior decision. In
the present case, the agency has requested clarification regarding the
processing of complainant's individual complaint.
In the present case, we note that the agency should have held
complainant's individual complaint in abeyance while the appeal of
FAD-1 denying certification of the class complaint was pending before the
Commission. The record reveals that by November 20, 2002, complainant had
timely filed an appeal of FAD-1. Thus, complainant's filing of an appeal
occurred a year before the agency dismissed the individual complaint in
December 2003, and while the appeal was pending before the Commission.
Although the agency's own records indicate that it referred the processing
of this complaint to its United States Marshall Service (USMS) due to an
apparent conflict of interest, we note that it did not forward the file
to the USMS until November 27, 2002, which was after the date complainant
had appealed FAD-1. Accordingly, the agency is ordered to recommence
processing complainant's individual complaint. If the agency believes
the reasons set forth in its December 2003 dismissal are still proper,
it can reissue that dismissal with appeal rights to the Commission.
Accordingly, the petition for clarification is GRANTED. The agency is
directed to comply with the Order herein.
ORDER
The agency is ordered to process the remanded individual complaint in
accordance with 29 C.F.R. � 1614.108 et seq. The agency shall acknowledge
to complainant that it has received the remanded complaint within 30 days
of the date this decision becomes final. To the extent that the agency has
not already done so, the agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of the appropriate
rights within 150 days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within 60 days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (R0408)
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 (Z1008)
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
December 15, 2009
__________________
Date
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0420100002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420100002