0120092208
09-17-2010
Bernard A. Benton, Arach J. Wilson, et al., Complainants, v. Tom J. Vilsack, Secretary, Department of Agriculture (U.S. Forest Service), Agency.
Bernard A. Benton, Arach J. Wilson, et al.,
Complainants,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(U.S. Forest Service),
Agency.
Appeal Nos. 0120092007, 0120092208, 0120092135
Agency Nos. FS-2008-01004, FS-2008-01004, FS-2008-01005,
FS-2008, 00164
DISMISSAL OF APPEALS
Complainants, Class Agents for the Benton-Wilson African-American Abeyance Disparate Treatment Class, filed appeals with this Commission from the Agency's letter dated March 6, 2009, closing their complaints 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.1 For the following reasons, the appeal are DISMISSED.
In or around October 2008, Complainants filed three complaints claiming that the Agency discriminated against them based on race (African American), age (over 40), and in reprisal for prior EEO activity, alleging that the Agency processed potential EEO class complaints from African Americans in a manner different from other pending class complaints, in that class complaints from African Americans were held in abeyance from May 13, 1999, to August 22, 2008, pending a decision on certification in Allen P. Spencer, et al. v. U.S. Department of Agriculture, Agency No. 990659, filed May 11, 1999 (the Spencer complaint).2
By letter dated March 6, 2009, the designated Agency official responsible for the processing of EEO complaints, the Acting Director of the Office of Adjudication and Compliance (OAC), stated that the 2008 complaints, as with an earlier complaint filed in 2000, stated dissatisfaction with the processing of EEO claims, and therefore must be referred to the Agency official in charge of the quality of the process.3 The Agency noted that the Commission's consideration of the Spencer appeal included review of Complainants' complaint filed in 2000, and considered that the Commission adjudicated the Complainant's 2000 complaint in its the Spencer appellate decision. Accordingly, the Agency refused to accept the 2009 complaints and administratively closed them.4
Upon review, the Commission finds that the Agency acted in accord with our regulations when it held related complaints in abeyance pending a certification decision in Spencer, and by addressing the Complainants' concerns outside of the EEO complaints process. The Commission's regulations require that complaints asserting dissatisfaction with an Agency's complaint processing be dismissed pursuant to 29 C.F.R. � 1614.107(a)(8). Accordingly, Complainants' appeals are DISMISSED.
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
September 17, 2010
Date
1 In the interest of judicial economy, the appeals are consolidated here.
2 The Commission denied class certification. The Estate of Allen P. Spencer, et al. v. Dep't of Agriculture, EEOC Appeal Nos. 0120060669, 0120061350 (July 8, 2008) (the Spencer appeal).
3 In 2000, the individual Complainants and a third employee raised the same matter, that the Agency held potential class complaints from African Americans in abeyance while it processed the Spencer complaint. In July 2001, the designated Agency official informed them that their issue constituted a statement of dissatisfaction with Agency processing of EEO complaints; that EEOC directives required it to hold the complaints of putative class members in abeyance pending a decision on certification of the class in the Spencer complaint; and that their correspondence would be added to the file for consideration by the Commission in the certification process.
4 The Agency's March 6, 2009, letter did not advise Complainants that they had a right to appeal its determination to the Commission.
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0120092007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092007, 0120092208, 0120092135