0120161682
02-21-2018
Janay H.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration (FAA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janay H.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration (FAA)),
Agency.
Appeal No. 0120161682
Agency No. 2016-26584-FAA-05
DECISION
On April 4, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 7, 2017, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Logistics Management Specialist FV-0346-F at the Mike Monroney Aeronautical Center in Oklahoma City, Oklahoma.
On February 9, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African-American), age (55), and reprisal for prior protected EEO activity under Title VII (prior alleged EEO activity under other statutes, if any, are not determinable from the record) when she was not selected for two open positions of Logistics Management Specialist FV-0346-G (Vacancy Announcement No. AAC-INT-15-AML7070-43167) in October and November of 2015.
In its FAD, the Agency advised Complainant that a class action complaint is currently pending before an Equal Employment Opportunity Commission Administrative Judge (AJ) in the Dallas District Office, and the class claims were defined as:
Whether the FAA at the Mike Monroney Aeronautical Center (MMAC) in Oklahoma City discriminated against African-American applicants during the period beginning February 6, 2001 to the present, and African-American employees occupying permanent positions during the period of November 1, 1997 to present, who were denied employment (in either temporary or permanent GS-5 or higher positions) or promotion to a GS-5 or higher positions (either competitively or noncompetitively) due to the disparate impact of subjective promotion practice on the basis of their race.
The Agency found that Complainant's individual complaint came within the definition of the class claims, and that her individual complaint it is subsumed within the class complaint. The Agency, as required, gave Complainant appeal rights, and she filed the instant appeal.
ANALYSIS AND FINDINGS
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 8-4 to 8-5 (as revised, Aug. 5, 2015) provides:
If a class complaint is certified, all individual complaints that raise claims identical to the definition of the class claim(s) shall be subsumed within the class complaint. When the class claim proceeds to a hearing on the merits, the subsumed individual claim(s) may be presented during the liability stage by the class agent, or at the remedy stage by the individual complainant....
(a) For an individual claim to be subsumed in an accepted class complaint, it must be identical in all respects to the class claim(s), including the issue and basis of discrimination alleged (emphasis added). When an individual complaint raises multiple claims, only those claims that are identical to those raised in the class complaint will be subsumed in it. The non-identical claims in the individual complaint shall be processed separately under the individual complaint process.
The Agency did not identify the class complaint. After doing research, we take administrative notice that in Lewis, et al. v. Department of Transportation, EEOC Appeal No. 01A40442 (Sep. 28, 2005), the Commission certified a class that encompassed African-American employees employed by the FAA at the Mike Monroney Aeronautical Center in permanent positions during the period of November 1, 1997 to present, who were denied competitive and/or noncompetitive promotion to a GS-5 or higher position due to the disparate impact of subjective promotion practices.2
The bases of age and reprisal in Complainant's individual complaint are not part of the certified class complaint, as represented in the FAD and Lewis, et al. Applying MD-110, we find that that Complainant's bases of age and reprisal in her individual complaint are not subsumed within the certified class complaint, and the Agency must process these claims separately under the individual complaint process.
In its FAD, the Agency represents that the certified class complaint regards matters from 1997 to present and 2001 to present. In Carter-Jacobs v. Department of Transportation, EEOC Appeal No. 01A40594 (Oct. 14, 2005), the Commission recounted that the Class Agent sought certification for matters occurring from 1997 "until the date of certification." The Agency provided no documentation on the current definition of the certified class complaint. In the absence of such documentation, we decline to find that a class complaint certified in 2005, that purportedly covers matters occurring to "the present," actually runs through 2015, when the events in Complainant's individual complaint occurred. Accordingly, we find that no part of Complainant's individual complaint is subsumed into the certified class complaint, including the basis of race discrimination.
The FAD is REVERSED.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, 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 sixty (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 below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
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. 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 (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 (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
February 21, 2018
__________________
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.
2 The Commission noted that that the AJ retains the discretion to redefine a class, subdivide it, or recommend dismissal if it is discovered that there is no longer a basis to proceed as a class complaint. As of February 16, 2018, the class complaint is still pending before the EEOC's Dallas District Office.
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