closed0120092685
06-30-2011
Elizabeth L. Holencik, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Elizabeth L. Holencik,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120092685
Agency No. BOP-2008-0732
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated April 27, 2009, holding Complainant’s complaint
in abeyance due to the Turner class action.
BACKGROUND
During the period at issue, Complainant worked as a Treatment Specialist
at the Agency’s facility in Victorville, California. Complainant
filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of race (Caucasian), sex (female), and in
reprisal for prior protected EEO activity.
In its final decision dated April 27, 2009, the Agency determined that
because Complainant’s complaint included an allegation of a denial of
a promotion based on reprisal, her complaint was being held in abeyance
due to the pending class action, Turner et al. v. Dept’t of Justice,
EEOC No.541-2008-00255X. The Turner class action concerns denial of
promotion based on reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency improperly held her
complaint in abeyance. Complainant asserts that her complaint encompasses
more than a claim involving a denial of a promotion based on reprisal.
Rather, Complainant states that she is alleging harassment on the bases
of race, sex, and reprisal with respect to numerous issues, including
but not limited to, being subjected to investigations, having her home
computer seized, being subjected to unwarranted scrutiny, and stalked.
In response, the Agency requests that we affirm its final decision
holding Complainant’s complaint in abeyance.
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). In addition, Equal Employment
Opportunity Management Directive-110, Chapter 8, III(c) (Nov. 9, 1999)
provides, in relevant part, that “an individual complaint that is
filed before or after a class complaint is filed and that comes within
the definition of the class claims, will not be dismissed but will be
subsumed within the class complaint.”
The record reflects that Complainant, in part, is alleging denial of
promotions based on reprisal.1 We find that this claim is properly
subsumed as part of the Turner class action.
However, the record also reflects that Complainant is alleging
harassment on the bases of race, sex, and reprisal. These matters are
not encompassed within the Turner class action. Thus, the Agency’s
decision to hold these matters in abeyance is improper.
CONCLUSION
Accordingly, we AFFIRM the Agency’s decision holding in abeyance
Complainant’s claim alleging denial of promotions based on reprisal and
this matter is subsumed as part of the Turner class action. However, we
REVERSE the Agency’s final decision holding in abeyance the remainder
of Complainant’s complaint and we REMAND these matters to the Agency
for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (harassment on
the bases of race, sex, and reprisal) 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
June 30, 2011
Date
1 In an attachment to her formal complaint, Complainant states,
in relevant part, “I have been applying for promotions for several
years….[A named manager] refuses to promote me…[They] are retaliating
against me for filing the first EEO complaint.”
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0120092685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092685