0120170892
03-09-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ward B,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120170892
Agency No. HS-TSA-26565-2016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 2, 2016, his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. in abeyance pending the resolution of a class complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal at the Agency's facility in Cincinnati, Ohio. On September 15, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age when on or around June 28, 2016, he was notified of the Agency's intent to involuntarily reassign him from the Cincinnati Federal Air Marshal Service Field Office to the Chicago Federal Field Marshal Service Office.
In its December 2, 2016 decision, the Agency informed Complainant that the entire complaint was being held in abeyance as it had been determined that the matter raised in the complaint was subsumed within a pending class action that is pending before the U.S. District Court, Northern District of California (K.H., et al., v. Sec'y of the Dep't of Homeland Security, 2016 U.S. Dist. Lexis 93233 (N.D. Cal July 18, 2016)) Case No. 15-cv-0740-JST. The class action case concerns the targeting of the Cincinnati, Cleveland, Phoenix, Pittsburg, San Diego, and Tampa Field Office for closure and the resulting reassignment of employees to other offices.
The instant appeal from Complainant followed. On appeal, Complainant argues that his complaint is different, but he does not explain the difference. In response, the Agency argues that his complaint is identical to the claims raised in the K.H. class action.
ANALYSIS AND FINDINGS
The Commission notes that it 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. United States Postal Service, EEOC Request No. 05920101 (February 13, 1992). In addition, Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (November 9, 1999) 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."
Upon review, we find that the Agency is correctly holding Complainant's individual claim of age discrimination in abeyance. Specifically, in his formal complaint, Complainant alleged that the Agency discriminated against him based on his age when it involuntarily transferred him from the Cincinnati Office to the Chicago Office. This claim of age discrimination is properly subsumed within the K.H. class action.
Accordingly, the Agency's decision to hold Complainant's complaint of age discrimination in abeyance is AFFIRMED. That claim is properly subsumed in the K.H. class action.
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 (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 (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
March 9, 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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