Thomas M. Carter, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionAug 5, 2009
0520090517 (E.E.O.C. Aug. 5, 2009)

0520090517

08-05-2009

Thomas M. Carter, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.


Thomas M. Carter,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

Agency.

Request No. 0520090517

Appeal No. 0120090667

Agency No. POP-2008-0739

DENIAL

The agency timely requested reconsideration of the decision in Thomas

M. Carter v. Department of Justice (Federal Prisons), EEOC Appeal

No. 0120090667 (March 24, 2009). EEOC Regulations provide that the

Commission may, in its discretion, grant a request to reconsider any

previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In its prior decision, the Commission reversed the agency's decision to

hold the instant complaint in abeyance because it is "identical" to the

claim raised in Turner v. Department of Justice, Agency Nos. P-2004-0296

and P-2005-0128. The Commission noted that the record did not contain

a copy of the class complaint. The Commission further found that

the class complaint, as described by the agency, did not contain any

temporal or geographic limitations. Finally, the Commission stated

that complainant had asserted that his claim is also based on sex,

a protected class not included in the class complaint. The Commission

reversed the agency's decision to hold the instant complaint in abeyance,

and remanded the complaint to the agency for further processing..

In its request, the agency proffers evidence it failed to present on

appeal: namely, the formal complaint and the AJ's order in the Turner

class action finding that the class agent had provided a sufficiently

detailed claim. The agency reiterates its argument that the complaint,

regarding complainant's non-selection for a Case Manager position due

to his sex and prior EEO activity, should be held in abeyance because

it concerns "retaliatory failure to promote" as presented in the class

complaint. Additionally, the agency argues that treating the instant

case differently that the other twenty-four complaints being held in

abeyance would have a substantial impact on the policies, practices and

operations of the agency's EEO office.

After reconsidering the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. � 1614.405(b), and it is the decision of the Commission to deny

the request. As noted in the previous decision, geographical differences

exist between complainant and the class agent. Complainant has also

raised sex discrimination, which is not reflected in the class complaint.

Moreover, Commission records show that the Turner class was denied

certification. See Dennis Turner et al. v. Department of Justice, EEOC

Appeal No. 0720060041 (July 19, 2007).1

With respect to the agency's argument that the complaint should be held

in abeyance to maintain consistency with the treatment of the other

pending complaints, the Commission is not persuaded. In contrast to the

agency's assertion that the other matters remain in abeyance, Commission

records show otherwise. See Cephus Hill v. Department of Justice EEOC

Appeal No. 0120090832 (April 23, 2009); req. for reconsid. denied EEOC

Request No. 0520090484 (July 9, 2009).

The decision in EEOC Appeal No. 0120090667 remains the Commission's

decision. There is no further right of administrative appeal on the

decision of the Commission on this request. The agency shall comply

with the Order as set forth below.

ORDER (E0408)

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 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.

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 5, 2009

__________________

Date

1 It appears that the class agent has re-filed his class complaint.

See Cephus Hill v. Department of Justice, EEOC Appeal No. 0120090832

(April 23, 2009).

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0520090517

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013