0120110151
05-01-2013
Simon S. Ponce, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Simon S. Ponce, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120110151
Hearing No. 540-2007-00172X
Agency No. HS06CBP000166
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Administrative Judge's decision dated June 23, 2010 concerning his individual complaint alleging 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. For the following reasons, the Commission AFFIRMS the final order of the Agency that adopted the Administrative Judge's decision to dismiss Complainant's individual complaint.1
BACKGROUND
The record reveals that Complainant filed an individual complaint on December 6, 2005, where he alleged that he had been subjected to discrimination on the bases of race/national origin (Mexican), sex (male), and reprisal (prior EEO activity) when on or about September 8, 2005, he learned that he was not selected for the position of Supervisory Custom and Border Protection Officer, GS-12, at the San Luis Port of Entry, Arizona. Thereafter, on April 13, 2006, while the Agency was investigating Complainant's individual complaint, he moved for class certification.
Complainant alleged in the class complaint that he and the putative class were discriminated against on the bases of race and national origin (Hispanic) on or about April 12, 2006 when management: (1) denied or striped one or more members of the class of their employment rights and opportunities because of their race and nationality all in violation of Title VII; (2) subjected one or more of the class members to degrading, humiliating and meaningless tasks designed to intimidate the members; (3) subjected one or more of the class members to positions without a weapon and/or bullet proof vests putting them in "harms way" and "causing them to fear for their lives;" (4) subjected one or more of the class members to adverse employment actions including: threats of termination, wrongful termination, failure to hire, failure to promote, violations of the Uniformed Services Employment and Reemployment Rights Act, harassment, retaliation, and discriminatory testing; (5) engaged in a pattern and practice of considering nationality and race for any vacant positions, preferring non-Hispanic employees, or demanding from male Hispanic candidates qualities, credentials, and experience not required of other non-Hispanic candidates; (6) used race and nationality in an open and notorious fashion to deny Hispanic male applicants for employment opportunities to the point that many qualified male Hispanic employees and potential applicants for employment have not submitted applications for other positions, realizing that their applications would probably be rejected; and (7) engaged in a historic and undeniable pattern of disparate treatment in the terms, conditions and advancement of Hispanic males and their Anglo counterparts at the port of San Luis.
The Agency forwarded the complaint to an EEOC Administrative Judge (AJ) for determination as to whether the class should be certified. The AJ denied class certification as she found that the class was not adequately represented. The Agency issued a final order fully complying with the AJ's findings. In response, Complainant appealed the decision. The Commission, in Ponce v. DHS, EEOC Appeal No. 0120073348 (October 2, 2007), found that the Agency erred when it denied certification based on inadequate representation finding that such a decision was premature. The Commission remanded the complaint to the AJ for continued processing.
Upon review of the remanded class complaint, the AJ noted that Complainant also had an individual complaint regarding this same matter before her. The AJ found that Complainant's individual complaint should therefore be subsumed into the class complaint because the allegations contained in the individual complaint were the same as those referenced in Complainant's class complaint. Accordingly, the AJ dismissed Complainant's individual complaint. Complainant is now appealing that dismissal in the instant complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did not receive the Commission's June 1, 2010, decision until July 23, 2010. Complainant then argues that the AJ erred when she found that his individual complaint should be subsumed in the class complaint. Complainant maintains that his individual complaint is a separate entity apart from the class complaint and the determination of the individual complaint should be made following the outcome of Complainant's class action complaint. Thus, Complainant requests that the Commission reinstate his individual complaint.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order adopting the AJ's decision. Based upon our review of the record, we find that Complainant's individual complaint falls squarely within the definition of the class complaint and therefore it was properly dismissed and subsumed into the class complaint. We find that other than articulating that his individual complaint and class complaints are not the same, Complainant and his attorney have provided no persuasive evidence that establishes that this is the case. Accordingly, the preponderance of the evidence of record does not establish that the AJ erred in dismissing Complainant's individual complaint.
Accordingly, the AJ's decision, which became the Agency's final order, is AFFIRMED.
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
_5/1/13_________________
Date
1 Although the Agency did not issue a final order here, the Commission's Management Directive 110 (EEO MD-110), provides that if an agency fails to issue a final order and file an appeal with the issuance of the order, the Administrative Judge's decision will be deemed ratified by the agency upon the expiration of the agency's 40-day period for accepting or not accepting the Administrative Judge's decision. EEO MD-110, 9-7, note 4.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110151
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120110151