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