0120091841
08-20-2009
Raymond Machak, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Raymond Machak,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120091841
Agency No. P20080613
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 5, 2009, holding in abeyance his formal 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
when, on August 5, 2008, the agency rescinded its offer of reinstatement
with its United States Penitentiary-Canaan in Waymart, Pennsylvania.
On March 5, 2008, the agency issued a decision. Therein, the agency
stated that complainant's formal complaint was being held in abeyance
pending the possible certification of a class complaint. Specifically,
the agency determined that the claim raised in complainant's formal
complaint was related to the claim raised in Turner v. Department of
Justice, Agency Nos. P-2004-0296 and P-2005-0128. The agency stated that
that Dennis Turner, the class agent in Turner v. Department of Justice,
Agency Nos. P-2004-0296 and P-2005-0128, filed a class complaint, claiming
that he and others within the agency were discriminated against on the
basis of reprisal for prior EEO activity when the agency engaged in a
pattern or practice of retaliating by denying promotion opportunities to
employees who engaged in prior protected activity. However, the record
contains no copy of this class complaint.
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. United States Postal Service, EEOC
Request No. 05920101 (February 13, 1992). In addition, Equal Employment
Opportunity Management Directive-110 (MD-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. If the
class complaint is dismissed at the certification level, the individual
complaint may still proceed ..."
In this case, however, the Commission notes that the agency determined
that complainant's formal complaint should be held in abeyance because
it is "identical" to the claim raised in the Turner class complaint. As
the record contains no copy of the class complaint, it is impossible to
determine whether or not the instant individual complaint is identical
to the class complaint. Moreover, the class complaint, as identified
by the agency in it final decision, is a claim of retaliation regarding
decisions relating to promotional opportunities. Based on the agency's
characterization of the class claim, reinstatement as an issue appears
not to have been an issue raised in the class complaint.
The Commission notes that the agency has placed a number of other cases,
in addition to the instant one, in abeyance as involving the same issues
as those raised in Turner v. Department of Justice. The Commission
cautions the agency that it must carefully determine whether or not
complaints fall within the Order issued by the EEOC Administrative
Judge in the Turner class action. The agency may risk being sanctioned
if it is determined that its decisions to hold cases in abeyance are
being made to avoid compliance with the agency's obligation to process
formal complaints in a timely manner consistent with EEOC's regulations
and MD-110. See 29 C.F.R. � 1614.404(c); see also MD-110, Chapter 9.
CONCLUSION
Upon review of the record, the agency's decision to hold the complaint
in abeyance is REVERSED, and the complaint is REMANDED to the agency
for further processing in accordance with the following ORDER.
ORDER (E0408)
The agency is ordered to process the remanded complaint 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 becomes final. 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 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 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (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
August 20, 2009
__________________
Date
2
0120091841
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091841