0120122545
10-11-2012
Tony D. Henry, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Tony D. Henry,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122545
Agency No. BOP-2012-0654
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 11, 2012, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
In his complaint filed on April 23, 2012, Complainant alleged that the Agency subjected him to discrimination on the bases of age (48) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on January 30, 2012, Complainant was notified that he was not selected for the Maintenance Mechanic Supervisor position announced number SCR-2012-0006.
In its decision dated May 11, 2012, the Agency informed Complainant that an investigation would be conducted into the allegations raised in his complaint, but indicated that no final decision would be issued on the merits of his claims because the entire complaint was being held in abeyance as it had been determined that the matter raised in the complaint was subsumed within a pending class action, Turner, et al. v. Department of Justice, EEOC No. 541-2008-00255X. The Turner class action case concerns denial of promotions based on reprisal.
Complainant appealed the Agency's decision to hold the case in abeyance. On appeal, Complainant indicated that his claim of discrimination is based on the Agency's failure to vouch for him when he applied for the position in question. As such, Complainant asserted that his claim was based on the Agency's Reference Check/Vouchers process used in reassignment and promotion decisions. Accordingly, Complainant requested that his complaint be investigated and provided with a final action as required by the regulations. The Agency asked that the Commission affirm its decision to hold the matter in abeyance.
ANALYSIS AND FINDINGS
The Commission notes that it 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, 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."
Upon review, we find that the Agency is correctly holding Complainant's individual claim of reprisal discrimination in abeyance. Specifically, in his formal complaint, Complainant alleged that the agency unlawfully retaliated against him for engaging in prior, protected EEO activity against him when he was not selected for the position of Maintenance Mechanic Supervisor position. This claim of reprisal discrimination is properly subsumed within the Turner class action.
However, we agree with Complainant that the Agency is also improperly holding in abeyance his claim of discrimination on the basis of age because this claim does not fall within the scope of the Turner class action.
CONCLUSION
Accordingly, the Agency's decision to hold Complainant's claim of reprisal discrimination in abeyance is AFFIRMED. That claim is properly subsumed in the Turner class action. The Agency's decision to hold in abeyance Complainant's claim of discrimination on the basis of age is REVERSED, and that claim is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (age) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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 (M0610)
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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
October 11, 2012
__________________
Date
2
0120122545
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122545