0120170153
01-05-2017
Rosina L.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosina L.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170153
Agency No. DON 16-4523A-01095
DECISION
On October 8, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 13, 2016, dismissing her class 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this class complaint, Complainant worked as a Data Support Assistant at the Agency's Puget Sound Naval Shipyard & Intermediate Maintenance Facility (PSNS & IMF) Code 740 in Bremerton, Washington.
Complainant filed a formal class complaint dated July 29, 2016. While she filed a class complaint, in its FAD the Agency defined it as Complainant alleging that she was discriminated against based on her race (African-American), sex (female), color (Black), disability and reprisal for prior protected EEO activity when:
1. PSNS & IMS used the USAJOBS hiring process "Temporary Promotion" as an unfair hiring practice by managing its human resource hiring and promotion under organized discriminatory practices; and
2. PSNS & IMF violated the Equal Pay Act when she did not receive equal wages.
The Agency dismissed the class complaint on the grounds that (1) it was the basis of a civil action decided by a United States District Court in which Complainant was a party - 29 C.F.R. � 1614.107(a)(3), and (2) Complainant filed the complaint more than 15 days after receiving her notice of right to file the complaint - 29 C.F.R. � 1614.107(a)(2).
On March 14, 2016, Complainant filed an application to proceed in forma pauperis with the United States District Court, Western District of Washington, case 3:16-cv-05191. Therein, among other thing, she indicated that she wished to administratively close informal administrative complaint DON 16-4523A-01095 to receive a "right to sue" letter.
On March 18, 2016, the Court denied Complainant's application. Citing case law that a court should do so at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit, the Court reasoned that as a non-attorney, Complainant cannot represent her putative class members. It provided her the opportunity to amend her application to assert only claims on her behalf, or pay the filing fee within 30 days. After Complainant did neither, on April 27, 2016, the Court ordered that "this cause of action" is dismissed.
On March 11, 2016, the Agency mailed Complainant her notice of right to file her formal complaint. The record contains a postal computerized tracking receipt indicating a delivery in "Bremerton, WA" on March 12, 2016. Among numerous other documents, Complainant included a copy of the above notice with her March 14, 2016, filing in the District Court. According to her certificate of mailing, Complainant mailed her administrative formal class complaint to the Agency on July 29, 2016.
On appeal, Complainant writes that the United States District Court has a corrupted system. The Agency writes that Complainant's administrative formal complaint was a class complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.204(d)(1) provides:
Within 30 days of an agency's receipt of a [class] complaint, the agency shall: Designate an agency representative who shall not be any of the individuals referenced in � 1614.102(b)(3), and forward the complaint, along with a copy of the Counselor's report and any other information pertaining to timeliness or other relevant circumstances related to the complaint, to the Commission. The Commission shall assign the complaint to an administrative judge or complaints examiner....
EEOC Regulation 29 C.F.R. � 1614.204(d)(2) provides:
The administrative judge may dismiss the complaint, or any portion, for any of the reasons listed in � 1614.107 or because it does not meet the prerequisites of a class complaint under � 1614.204(a)(2).
Applying 29 C.F.R. � 1614.204(d)(1), the FAD is VACATED. The Agency shall comply with the order below.
ORDER
Within 35 calendar days of the date of this decision, pursuant to 29 C.F.R. � 1614.204(d)(1), the agency shall designate an Agency representative who shall not be any of the individuals referenced in � 1614.102(b)(3), and forward Complainant's class complaint, along with a brief cover letter explaining its reason for doing so, this decision, a copy of the Counselor's report and any other information pertaining to timeliness or other relevant circumstances related to the complaint to the Commission.
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
January 5, 2017
__________________
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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