Chong O.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionJul 7, 2016
0120161599 (E.E.O.C. Jul. 7, 2016)

0120161599

07-07-2016

Chong O.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Chong O.,1

Complainant,

v.

Loretta E. Lynch,

Attorney General,

Department of Justice

(Federal Bureau of Prisons),

Agency.

Appeal No. 0120161599

Agency No. BOP-2014-01211

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 21, 2016, holding his formal complaint alleging 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., in abeyance. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

At the time of events giving rise to this complaint, Complainant worked as a teacher at the Agency's Federal Correctional Institution in Miami, Florida.

On December 27, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American and American Indian), sex (male), national origin (African and Indian Native American), and reprisal when, from June 30, 2014 to December 2014, Complainant was subjected to harassment in the form of having his post changed, denied the opportunity to bid on post assignment, subjected to unwelcomed comments, close supervision, written up, and his incident reports were ignored and not processed.

The Agency investigated the complaint. Complainant has requested a hearing on the complaint. As the matter was pending before an EEOC Administrative Judge (AJ), the Agency decided that part of Complainant's complaint alleged a claim of retaliation when he was not selected for a promotion. The Agency determined that this claim and basis should be subsumed in the class action, Turner, et. al. v. Dep't. of Justice, EEOC Case No. 541-2016-00016X; Agency Case Nos. P-2004 EEOC Case No. 541-2016-00016X; Agency Case Nos. P-2004-0296 and P-200-0138 (Turner class action).

Complainant appealed asserting that his complaint should not be subsumed under the Turner class action. He indicated that his complaint is unique and unrelated to the claim raised in the Turner class action. As such, he requested that the Commission reverse the Agency's decision to hold this claim in abeyance and to let his complaint remain intact. He also indicated that he believes the matter is pending before the AJ. He provided a copy of the AJ's ORDER on Initial Conference and Deadlines and Record Completion dated February 18, 2015. The Order states that, in addition to his claim of change of post, Complainant alleged discrimination on the bases of race (African-American & American-Indian), religion (Christian), sex (male) and reprisal for prior EEO Activity, when in April 2014, he became aware that he was not selected for the second time regarding the Supervisor of Education position, GS-1710-12, vacancy announcement number, ARO-2014-0044, FCI Miami, FL.

ANALYSIS AND FINDINGS

As an initial matter, we note that 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). In addition, Equal Employment Opportunity Management Directive-110 (MD-110), at 8 - 4 (Aug. 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. If the class complaint is dismissed at the certification level, the individual complaint may still proceed...."

In the instant case, the Agency asserts that Complainant's individual complaint should be held in abeyance because it is identical to the claim raised in the Turner class complaint. We take administrative notice of the Turner Class Complaint. See Turner v. Dep't. of Justice (Federal Bureau of Prisons), EEOC Hearing No. 541-2008-00255X, certification of class affirmed in EEOC Appeal No. 0720110008 (Sept. 15, 2015). The Turner class action concerns denial of promotions based on reprisal.

We note that Complainant's initial complaint, while alleging unlawful retaliation, did not allege a specific claim regarding a denial of promotion. However, the record indicates that Complainant amended his pending EEO complaint to include a claim of denial of promotion to the Supervisor of Education position based on his race, sex, religion and in retaliation for his prior EEO activity. Although Complainant asserted that his claim is different that the claim raised in the Turner class action, we are not persuaded. As such, we find that the Agency has properly decided to hold Complainant's individual claim regarding only the non-selection on the basis of reprisal discrimination in abeyance pending the outcome of the Turner class action. Complainant's claim of discrimination based on the non-selection for the Supervisor of Education position on the bases of race, religion and sex should continue to be processed with his other claim during the pending hearing (EEOC Hearing No. 510-2015-00060X).

CONCLUSION

Accordingly, the Agency's decision to hold the claim of denial of promotion solely on the basis of retaliation is AFFIRMED. The claim of denial of promotion on the bases of race, religion and sex should continue to be processed in accordance with the following ORDER.

ORDER

The Agency is ORDERED to resume processing of Complainant's individual claim of denial of promotion on the bases of race, religion, and sex from the point where processing ceased, namely with the AJ in the Commission's Miami District Office as part of Hearing No. 510-2015-00060X. The Agency shall notify the AJ in writing that Complainant's claim of retaliation regarding the promotion only has been held in abeyance pending the Turner class complaint.

A copy of the Agency letter of to the AJ 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 (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 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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's signature

Carlton M. Hadden, Director

Office of Federal Operations

July 7, 2016

__________________

Date

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.

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