0120150874
11-09-2016
Nadene M.,1 Complainant, v. Mark Gaston Pearce, Chairman, National Labor Relations Board, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nadene M.,1
Complainant,
v.
Mark Gaston Pearce,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 0120150874
Agency No. SF1409
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 28, 2014, dismissing her complaint of unlawful employment discrimination alleging violations 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.
Complainant retired from the Agency on July 1, 2014. On September 3, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of age and reprisal when, during her employment with the Agency, she had been denied promotional opportunities and the opportunity to participate in the Federal Examiner Bridge Program. In its decision, the Agency defined her claim as being "denied the opportunity to be considered for GS-5 and GS-7 competitive service professional series positions based on its [the Agency's] hiring practices."2
In its November 28, 2014 decision the Agency notified Complainant that it was holding the age portion of her complaint in abeyance. Specifically, the Agency determined that the age claim raised in Complainant's formal complaint was identical to the claim raised in a class complaint filed by Complainant which is currently pending before an Equal Employment Opportunity Commission Administrative Judge (AJ).3 The Agency noted that the class complaint was defined as alleging that the Agency's hiring policies discriminated against employees and applicants over 40 by denying them the opportunity to be considered for GS-5 and GS-7 competitive service professional series positions. The Agency noted that the matter was forwarded to the EEOC San Francisco District Office for further processing and assignment to an AJ. As such, the Agency determined that Complainant's age claim should be held in abeyance pending the outcome of the class complaint. The Agency noted that Complainant's claim based on reprisal would be processed separately as an individual complaint.
ANALYSIS AND FINDINGS
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 Service, EEOC Request No. 05920101 (Feb. 13, 1992). In addition, Equal Employment Opportunity Management Directive-110 (MD-110), Chapter 8, � III (August 2015) provides, in relevant part that:
[w]hen a complainant who is a potential member of a class action files an individual complaint between the time a class complaint is filed and a final certification decision is issued, the agency must determine whether there are claims in the individual complaint that are identical to those that are presented in the class complaint. If the agency determines that claims in the individual and class complaints are identical, then the agency shall issue a written decision notifying the complainant that the portion of the complaint raising claims identical to the class complaint will be held in abeyance during the pendency of the decision to accept or reject the class complaint.
MD-110 goes on to state that when the administrative judge issues a decision to reject the class complaint, the dismissal decision shall also contain notice to the class agent that his or her individual complaint will now be processed or also dismissed. If the administrative judge accepts the class complaint, the class agent's individual complaint will be subsumed within the class complaint. Id.
In the present case, Complainant is the class agent in EEOC Hearing No. 550-2015-00042X, which is pending a certification decision by an EEOC administrative judge. Pursuant to MD-110, the Agency has correctly held Complainant's individual age claim in abeyance because it is identical to the claim raised in her class complaint.
Accordingly, the Agency's decision to hold Complainant's age claim in abeyance pending the outcome of her class complaint is AFFIRMED. Complainant's retaliation claim is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER
To the extent it has not already done so, the Agency is ordered to process the remanded retaliation claim4 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 (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.
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 (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
November 9, 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.
2 Complainant withdrew her allegation that the Agency's practices caused her to retire (constructive discharge) effective July 1, 2014.
3 The Commission's records indicate that matter was docketed as Hearing No. 550-2015-00042X and is currently pending.
4 We recommend the Agency assign this claim a new complaint number to distinguish it from the class complaint.
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