0120121806
08-31-2012
Victor G. Bennett, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
Victor G. Bennett,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120121806
Agency No. FDICEO-12-006
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 9, 2011, 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.1
BACKGROUND
On December 5, 2011, Complainant filed an EEO complaint alleging that he was discriminated against based on his race (African-American) when on October 29, 2011, he was discouraged from applying for employment with the Agency because of its mandatory bar against employing anyone with a felony conviction. He learned of the bar on October 29, 2011, when he logged onto the Agency's career website which notified him of the bar. Complainant stated he has a felony conviction.
The Agency dismissed the complaint for failure to state a claim. It cited and analyzed a statute which prohibits it from employing anyone convicted of a felony, a federal district court case interpreting this statute, and two Commission cases which found that because the Agency was prohibited by statute from employing anyone with a felony conviction their claims that they were dissuaded from applying for employment as a matter of law failed to state a claim. The instant appeal followed.
On appeal Complainant argues that the Agency's bar against employing anyone with a felony conviction creates an adverse impact against African-Americans. He cites prior Commission policy on use of conviction records in employment decisions. He also cites to Office of Personnel Management (OPM) regulation 5 C.F.R. � 731.202, which regards making suitability determinations.
In opposition to the appeal the Agency argues that its dismissal should be affirmed.
ANALYSIS AND FINDINGS
In April 2012, the Commission issued new guidance on arrest and conviction records. In the guidance the Commission advises that national data supports a finding that criminal record exclusions in employment have a disparate impact on African Americans and Hispanics, but explains that an employer can prove there was no disparate impact in its work place. The guidance gives advice, among other things, on the handling of disparate impact cases. EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq (Apr. 25, 2012).
The Agency asserted that it is prohibited by statute from employing anyone convicted of a felony. The Agency cites to 12 U.S.C. � 1822(f)(4). Pursuant to this statute the Agency promulgated 29 C.F.R. � 336.4, which sets out the minimum standards for appointment to a position with the FDIC. It provides that no person shall become employed on or after June 18, 1994, by the FDIC who has been convicted of a felony.
In Scheidel v. Federal Deposit Insurance Corporation, EEOC Appeal No. 0120111964 (Oct. 17, 2011), request denied, EEOC Request No. 0520120087 (Apr. 17, 2012) and Norman v. Federal Deposit Insurance Corporation, EEOC Appeal No. 0120112899 (Oct. 17, 2011), the Commission found that because the Agency was prohibited federal statute 12 U.S.C. � 1822(f)(4) from employing anyone with a felony conviction, claims about being discouraged or dissuaded because of this bar from applying for employment with the Agency failed to state a claim as a matter of law. Applying these cases we find Complainant's complaint fails to state a claim.2
CONCLUSION
Based upon our review of the record, and for the foregoing reasons, the Agency's decision to dismiss Complainant's complaint is AFFIRMED.
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 (S0610)
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. 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
August 31, 2012
__________________
Date
1 In his notice of appeal Complainant wrote that his representative was the Agency EEO counselor who counseled his case. This shows confusion about the role of the EEO counselor. The EEO counselor provides information about the EEO process and attempts to informally resolve claims at the beginning of the complaint process. The EEO counselor does not serve as a representative. Accordingly, we are not sending a copy of this decision to the EEO counselor.
2 The Commission wrote in the guidance on arrest and conviction records that Title VII does not preempt federal law excluding individuals with specific convictions in certain industries or positions in both the private and public sectors, but if an employer decides to impose an exclusion that goes beyond the scope of a federally imposed restriction the discretionary aspect of the policy would be subject to Title VII analysis. Id., at 20, 21.
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0120121806
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121806