0120093646
06-27-2012
Roderick F. Easterling, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Roderick F. Easterling,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120093646
Agency No. 086300210
DECISION
On August 13, 2009, Complainant filed an appeal from the Agency's October 8, 2009, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency's final decision should be vacated and Complainant's complaint remanded to the Agency to be held in abeyance pending the outcome of a class civil action pertaining to criminal background checks.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for temporary employment with the Agency for the 2010 census. Complainant applied for seven different positions. Complainant filled out a Declaration of Federal Employment form where information was requested regarding any convictions within the past seven years. Complainant answered "no" to this question because it only asked for information for the past seven years. Complainant however had been convicted of a crime 15 years earlier. Upon completion of the required tests and submission of all required documentation, Complainant was told that a name-check against the FBI data system had resulted in a tentative match between his name and an arrest record. Based on the results of a criminal background check, Complainant was disqualified from the positions of Assistant Manager for Administration and Assistant Manager for Field Operations.
Complainant was given the opportunity to dispute the information. Consequently, he provided a letter from the U.S. District Court of South Carolina, which showed that the criminal case relating to his 1993 conviction "expired" on January 7, 2008. The Agency reviewed the information submitted by Complainant regarding his prior conviction. In a letter dated September 3, 2008, however, the Agency determined that Complainant was ineligible for employment as the positions he sought dealt with collecting personal information garnered from the public.
On October 18, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and age (44), and subjected him to disparate impact (race), when he was not selected for a temporary position with the Agency due to his criminal history.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's May 5, 2009 request, the Agency, on October 8, 2009, issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b). Prior to the issuance of a FAD, Complainant on August 7, 2009, filed, with the Agency, a request for a default judgment as the FAD had not been produced in a timely manner, i.e., within 60 days of his request.
The Agency's decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency explained that even assuming arguendo that Complainant established a prima facie case of race and age discrimination, management articulated legitimate, nondiscriminatory reasons for its actions, namely, that (1) Complainant was deemed ineligible because of his criminal history; (2) Complainant lived outside the area of consideration for at least one of the positions for which he applied; and (3) Complainant provided an incomplete application. The Agency argued that Complainant failed to show that its reasons were pretext for discrimination. As such, the Agency found that Complainant was not subjected to disparate treatment based on race and age when he was not selected for temporary employment with the Agency.
With respect to Complainant's disparate impact claim based on race, the Agency found that Complainant failed to prove this claim because he failed to identify an Agency policy of rejecting applicants with criminal backgrounds, and he offered no statistical evidence that African-Americans were disproportionately affected by such a policy. The Agency found that assuming arguendo that Complainant succeeded in establishing the first prong of the disparate impact analysis; he would still not prevail because the Agency articulated legitimate, nondiscriminatory reasons for his nonselection as was mentioned above.
Further, with respect to Complainant's request for a default judgment due to the Agency's failure to issue its FAD within 60 days from Complainant's request for a final decision; the Agency explained that Complainant mistakenly submitted this motion to the Agency because the Agency would not sanction itself. Moreover, the Agency explained that a default judgment is a severe penalty which should not be issued because of a brief delay especially when Complainant did not illustrate that he was prejudiced in any way by the delay.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his conviction is unrelated to the positions for which he applied. He also maintained that the Agency did not consider the nature and gravity of the offense, the length of time that had elapsed since the conviction, or the nature of the job sought.
In a letter dated May 21, 2010, the Agency advised the Commission that on April 13, 2010, a civil action had been filed in the United States District Court for the Southern District of New York. The case, Civil Action 10-CIV-3105, is a class action filed on behalf of all Black, Latino, and Native American applicants for Decennial Census employment who were not hired by the Census Bureau based on the results of the Census Hiring Employment Check (criminal background check) process. Because Complainant's arguments come within the purview of the putative class encompassed by the civil action, the Agency requests that the complaint be remanded to the Agency to be held in abeyance pending further proceedings in the civil action.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
A review of the class civil action, which at this time is still pending against the Agency, indicates that it does encompass the claims that are raised by Complainant with respect to his allegation of race discrimination. Therefore, in order to prevent the simultaneous pursuit of administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court, we will vacate the Agency's FAD and will remand this complaint to the Agency in order for it to be held in abeyance pending the outcome of the class civil action.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint to the Agency to be held in abeyance pending the class civil action.
ORDER
The Agency is ORDERED to take the following actions:
a. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall notify Complainant that his formal complaint will be held in abeyance pending the outcome of Civil Action 10-CIV-3105 filed in the United States District Court for the Southern District of New York.
b. The Agency, in the event that the civil action is dismissed, will reissue its final decision within thirty (30) calendar days of said dismissal and provide the appropriate appeal rights to Complainant.
A copy of the Agency's notice to Complainant and any new final decision 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 (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 (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
__6/27/12________________
Date
1 Although Complainant's appeal was filed before the Agency's final decision was issued, we find that this matter is properly before us because a final decision was subsequently issued.
2 For the reasons set forth above and in order to prevent the fragmentation of Complainant's claim, we are remanding both Complainant's race and age bases to the Agency and will decline at this time to address his request for a default judgment against the Agency.
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0120093646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093646