Ahmad S.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2020004382 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ahmad S.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2020004382 Agency No. USM-2020-00131 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision concerning 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Deputy U.S. Marshal (Criminal Investigator), GS-13, at the Agency’s Southern District of Texas facility in Laredo, Texas. On December 3, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and color (Black) when, on September 25, 2019, he was not selected for the position of GS-1811-14 Supervisory Deputy United States Marshal in the Southern District of Texas, advertised under Merit Promotion Announcement No. MPA 19-600. Complainant alleged that he was harassed when his white subordinate employees submitted a false complaint on June 2, 2019, in an effort to interfere with his promotion and, following his non-selection, the complaint was closed on October 1, 2019, as unsubstantiated. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004382 2 The Agency investigated the complaint, and on June 29, 2020, informed Complainant that his complaint would be subsumed into a class complaint, Matthew Fogg, et al v. Department of Justice, EEOC No. 570-2016-00501X. The EEOC Administrative Judge defined the class as: all current and former African American Deputy U.S. Marshals and Detention Enforcement Officers who were subjected to the Agency’s policies and practices regarding promotions, including reassignments and transfers, Headquarters assignments, and hiring and recruitment from January 1994 to present. The instant appeal followed. However, upon review, the Agency determined that only Complainant’s non-selection claim would be subsumed, and that his harassment claim would proceed. The Agency issued a second decision on the matter on August 21, 2020, and informed Complainant of his right to request a hearing on his harassment claim. We find that the Agency’s second FAD effectively rescinded the June 29, 2020 decision, and is the decision before us. 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 (August 5, 2015) 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 claim of discrimination with respect to his non-selection in abeyance. This claim of race discrimination is properly subsumed within the Fogg class action. We also agree that the Agency is properly proceeding with the processing of Complainant’s individual claim of harassment as this does not fall within the scope of the Fogg class action. Complainant was informed of his right to request a hearing on this claim. Accordingly, the Agency's decision holding the claim regarding Complainant’s non-selection in abeyance and processing his claim of harassment separately is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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. 2020004382 3 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004382 4 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 4, 2020 Date