closed0120131107
09-04-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120131107
Agency No. BOP-2012-0454
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision dated December 3, 2012, holding certain of her claims set forth in her EEO complaint in abeyance.
BACKGROUND
During the period at issue, Complainant worked as a Senior Officer Specialist at the Agency's Federal Correctional Institution in Bennettsville, South Carolina. On April 6, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO.
By letter dated July 18, 2012, the Agency issued a partial acceptance/dismissal letter. The Agency noted that Complainant filed a formal EEO complaint on April 6, 2012. The Agency in its July 18, 2012 letter also acknowledged that it received amendment requests from Complainant on April 20, 2012 and May, 18, 2012.
The Agency accepted the following claim for investigation:
[Complainant] allege[s] being subjected to a hostile work environment from December 7, 2011, through May 14, 2012, in the form of denial of training, being assigned a Temporary Alternative Duty to the Evening Watch Shift, receiving a letter of reprimand, and being threatened with a write up by [her] supervisor.1
However, the Agency dismissed the following claims on procedural grounds: on April 13 and October 5, 2011, Complainant was questioned for an SIS investigation and on December 7, 2011, Complainant received a proposal for discipline letter.2
By letter dated September 10, 2012, the Agency acknowledged receipt of Complainant's August 2012 amendment request. The Agency found that Complainant was alleging that management was forcing her to take two communication courses. The Agency found that this matter was additional evidence in support of Complainant's initial EEO complaint, Agency Case No. BOP-2012-0454.
By letter dated December 3, 2012, the Agency noted Complainant filed an amendment to her complaint on November 13, 2012. The Agency determined that Complainant's amendment request included the following claims:
2) On August 22, 2012, [Complainant] became aware that [she was] not selected for the Detail for Training (Correctional Counselor) position.
3) On November 2, 2012, [Complainant] became aware that [she was] not selected for the Correctional Counselor position, Vacancy Announcement Number BEN-2012-0036.3
The Agency found that these claims were sufficiently like or related to Complainant's original complaint. The Agency further found that Complainant's complaint includes an allegation of the denial of a promotion based on reprisal. The Agency found that Complainant's reprisal claim shall be held in abeyance due to the Turner class action, EEOC No. 541-2008-00255X. The Agency noted that the definition of the Turner class was agency employees who from January 1, 1994 to the present who have been denied promotion opportunities based upon the Agency's policy or pattern and practice of retaliation against employees because they engaged in protected Title VII EEO activity. We note that it is unclear from the Agency's December 3, 2012 letter whether the Agency was solely holding claim (3) in abeyance as part of the Turner class action or Complainant's entire reprisal complaint.
The instant appeal followed.
On appeal, Complainant requests that the Agency's decision holding her complaint in abeyance be reversed. Complainant asserts that her complaint includes numerous matters outside of the scope of the Turner class action, such as denial of training.
ANALYSIS AND FINDINGS
The Commission 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. U.S. Postal Serv., EEOC Request No. 05920101 (Feb. 13, 1992).
Regarding claim (3), the non-selection for the Correctional Counselor position, Vacancy Announcement Number BEN-2012-0036, we find that the Agency properly held this matter in abeyance because it involves a denial of a promotion based on reprisal and falls within the scope of the Turner class action. The record contains a copy of an email from a Senior Human Resource Specialist (HR1) dated November 27, 2012. Therein, HR1 asserts that the Correctional Counselor position at issue would have been a promotion for Complainant. HR1 asserts that Complainant is currently a GL-08 and that the position at issue was a GL-09.
Regarding claim (2), the Detail for Training position, we find that this matter should not be held in abeyance as part of the Turner class action. The record is devoid of evidence that this position was a promotion. In addition, Complainant asserts in her amendment request dated November 5, 2012, that the vacancy announcement for the Detail for Training position states "[t]his position was announced as a detail for training which involves on-the-job training for a period of time...not to exceed one year...there is no guarantee of promotion on completion of this program." Based on the foregoing, we do not find that the matter set forth in claim (2) involves a denial of a promotion. Thus, we do not find it falls within the scope of the Turner class action.
Regarding the accepted claim set forth in the Agency's letter dated July 18, 2012, involving a hostile work environment claim, we find that this matter falls outside the scope of the Turner class action and involves matters such as denial of training, discipline, and a temporary reassignment.
Accordingly, we AFFIRM the Agency's decision to hold claim (3) in abeyance. However, regarding claim (2) and the claim initially accepted by the agency in its letter dated July 18, 2012, we remand these matters to the Agency further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (claim (2) and the claim accepted by the Agency in its July 18, 2012 letter) 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 (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
September 4, 2014
Date
1 The Agency noted that Complainant's claim involving the letter of reprimand and being threatened with a write up by her supervisor constituted amendments to her initial complaint.
2 The Agency properly noted in its partial acceptance/dismissal letter that the dismissed claims cannot be appealed until there is a final action taken on Complainant's complaint. Thus, we decline to further address herein Complainant's dismissed claims.
3 The claims are re-numbered herein for ease of reference.
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0120131107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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