0120141864 (E.E.O.C. Jan. 27, 2017)

Allene S.,1 Complainant,v.James C. Duff, Director, Administrative Office of the U.S. Courts, Agency.

Equal Employment Opportunity CommissionJan 27, 2017

0120141864 (E.E.O.C. Jan. 27, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allene S.,1 Complainant, v. James C. Duff, Director, Administrative Office of the U.S. Courts, Agency. Appeal No. 0120141864 DECISION Complainant filed an appeal with this Commission from the decision of a United States Circuit Court of Appeals judicial panel dated February 5, 2014, affirming an earlier United States district court order dismissing her 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. Upon review, the Commission finds that Complainant's appeal should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, in particular, for lack of jurisdiction. ISSUE ON APPEAL Whether the Commission has jurisdiction over a claim of employment discrimination brought by a United States District Court probation officer, appointed pursuant to 18 U.S.C. § 3602(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior United States Probation Officer with the United States District Court for the Northern District of Alabama. On September 26, 2013, Complainant filed a formal complaint pursuant to the United States District Court for the Northern District of Alabama Employee Dispute Resolution Plan2 alleging that the Agency subjected her to discrimination on the basis of race 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. 2 The Employee Dispute Resolution Plan is an internal court procedure for processing claims of discrimination. At the direction of the Judicial Conference of the United States, each United States District Court has promulgated procedures for resolving claims of discrimination 0120141864 2 (African-American) when she was removed from her position. The complaint was assigned to a district court judge who dismissed the complaint as lacking merit on November 15, 2013. That dismissal was affirmed by order of the Judicial Council of the U.S. Court of Appeals for the Eleventh Circuit on February 5, 2014. Complainant now seeks our review of those orders by the instant appeal. ANALYSIS AND FINDINGS For the reasons set forth below, we conclude that the Commission does not have jurisdiction over this claim under Title VII of race discrimination brought by a United States District Court probation officer. As originally enacted, Title VII's protections against unlawful discrimination did not apply to federal government employees. The Act was amended in 1972 to extend its coverage to many, but not all, federal employees. Newman v. The Presidio Trust, EEOC Request No. 05A30686 (March 18, 2004). Added by the 1972 amendments, Section 717(a) of Title VII provides, in part: All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies as defined in section 105 of Title 5, . . . in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. (Emphasis added.) 42 U.S.C. § 2000e-16(a). This definition, as it pertains to judicial branch employees, was incorporated into the Commission’s regulation at 29 C.F.R. § 1614.103 setting out the scope of the Commission’s federal sector administrative complaint process: § 1614.103 Complaints of discrimination covered by this part. (b) This part applies to: brought by court employees, including probation officers. See Dotson v. Griesa, 398 F.3d 156, 172 (2d Cir. 2005) (detailing origin and function of federal district court dispute resolution plans.) 0120141864 3 (4) All units of the judicial branch of the Federal government having positions in the competitive service, except for complaints under the Rehabilitation Act; (Emphasis added.) Thus, according to 29 C.F.R. § 1614.103(b)(4), in order for this Commission's regulations to apply to an employee in the judicial branch of the federal government, such an employee must hold a position in the “competitive service.” Our review of the relevant federal precedents indicates that federal District Court probation officers, such as Complainant, are “excepted service” and not “competitive service” employees. See Semper v. United States, 694 F.3d 90, 94 (Fed Cir. 2012) (federal probation officer was in the “excepted service” and, by definition, not in the competitive service); Dotson v. Griesa, supra at 163 (“employees of the judicial branch, including probation officers . . . qualify as excepted service personnel because they are neither in the executive branch nor included in the competitive service by statute.”). Therefore, the Commission has no jurisdiction over this matter. CONCLUSION For the foregoing reasons, this appeal is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 0120141864 4 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 (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, Director Office of Federal Operations January 27, 2017 Date