Rogelio F. Garza, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 30, 2009
0120090420 (E.E.O.C. Mar. 30, 2009)

0120090420

03-30-2009

Rogelio F. Garza, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Rogelio F. Garza,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120090420

Agency No. FS-2007-00829

Hearing No. 540-2008-00148X

DECISION

On October 24, 2008, complainant filed a timely appeal with the Equal

Employment Opportunity Commission (EEOC or Commission) from a final agency

decision (FAD) dated August 7, 2008, holding in abeyance his individual

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., because there was a pending class complaint on the same matter.1

During the time of complainant's October 1, 2007, complaint, he was

a contract specialist, GS-12. Complainant alleged in his complaint,

in part, that he was subjected to discrimination based on his national

origin/race (Hispanic, Native American (Apache)), religion (Jewish),

and reprisal for prior EEO activity when he was not promoted to the

position of contracting specialist, GS-13.2

The FAD found that complainant's complaint was within the scope of the

claim raised in the case of Jody Smith v. Department of Agriculture,

Agency Case No. FS-2007-02693.3 According to the FAD, the Smith class

complaint is:

Whether the Forest Service, United States Department of Agriculture,

discriminated against the class agent and other members of the class on

the basis of age (over 40) and national origin (Hispanic) in granting

details to GS-09 positions, upgrading positions to GS-09, and promotions

to GS-09.

The FAD indicated that complainant's individual complaint was subsumed

into the class complaint, and would be held in abeyance pending the

final disposition of class certification. The FAD noted, however, that

where an individual complaint has been accepted, it will be investigated

but the report of investigation will not be distributed and will be

held in abeyance. This is consistent with complainant's contention on

appeal that his complaint was investigated, it was ready to be released,

and his case was ready to be heard before an EEOC AJ.

Equal Employment Opportunity Management Directive-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 stage, the individual

complaint may still proceed . . ."

The FAD improperly determined that complainant's complaint of

discrimination should be held in abeyance because it was within the scope

of the claim raised in the Smith class complaint. As an initial matter,

the class complaint, as recounted above, has no temporal limitation,

and hence we do not know if the individual and class complaint cover

the same time period. Moreover, the class complaint concerns details,

upgrading positions, and promotions at the GS-09 level, and our review of

all the claims in complainant's complaint does not reveal any such claims

at the GS-09 level. This is not surprising, since complainant is a GS-12.

On appeal, complainant writes that the class complaint concerns fire

fighter positions, while his concerns a contracting officer position in

a professional series. The agency does not dispute this. Complainant's

individual complaint is not within the scope of the class complaint.

Accordingly, the FAD to hold the complainant's complaint in abeyance

is REVERSED, and the complaint is REMANDED to the agency for further

processing in accordance with the following ORDER.

ORDER

The agency is ordered to issue to complainant a copy of the report

of investigation. The agency shall submit to the Hearings Unit of the

appropriate EEOC Field or District Office a request for a hearing on

complainant's complaint. The hearing request must include a brief

explanation that it is being made pursuant to this decision, and be

accompanied with the complaint file, report of investigation, and hearing

record in EEOC hearing no. 540-2008-00148X, and a copy of this decision.

The agency shall copy complainant on the hearing request. The agency

shall complete the above actions within 30 (thirty) days after this

decision becomes final. Thereafter, an AJ shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

A copy of the letter that transmits the investigative file to complainant

and a copy of the hearing request by the agency 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

March 30, 2009

__________________

Date

1 The FAD was a notification of abeyance letter that did not contain

appeal rights to the Commission. By order dated September 17, 2008, an

EEOC Administrative Judge (AJ) dismissed complainant's hearing request

because of the abeyance. Citing Roos v. United States Postal Service,

EEOC Request No. 05920101 (February 13, 1992), the AJ advised the agency

that its notification of abeyance due to a pending class complaint

is considered a FAD. It directed the agency to provide complainant

appeal rights to the Commission. The AJ's reliance on Roos was correct.

On appeal, complainant contends that the agency never provided him appeal

rights, as ordered. The agency does not contest this. Accordingly,

we deem complainant's appeal to be timely filed.

2 The complaint contained scores of incidents. Complainant writes on

appeal that his complaint was investigated, and the agency was ready

to release the report of investigation. The agency submitted to the

Commission the counselor's report and complainant's complaint, but not

information on the claim(s) that were accepted for investigation prior

to the abeyance. On appeal, complainant writes that the above claim was

accepted for investigation. The record does not show what happened to

the other claims.

3 This case is pending before an EEOC hearings unit, hearing number

480-2008-00349X.

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0120090420

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090420