01A63015
02-09-2007
Agency.
Sherry L. Shaffer, et. al.
Class Agent,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200630151
Agency No. 4E800000106
Hearing No. 320-2006-00074X
DECISION
Complainant filed timely appeals with this Commission from an agency
decision dated April 7, 2006, 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., and
another agency decision dated April 20, 2006, dismissing her individual
complaint, also brought under Title VII.
At the time of the events at issue, complainant had been employed,
starting in October 2003, to a string of 90-day appointments as a
non-career "casual" clerk in the Computer Forwarding System (CFS) Unit
in Denver, Colorado. Effective May 15, 2004 through May 9, 2005, she
received another non-career CFS clerk appointment as a "transitional"
employee at the PS-4 pay level.
The record indicates that the American Postal Workers Union (APWU) and
the agency entered into a Memorandum of Understanding (MOU) agreeing that
PS-4 CFS clerks would be upgraded to level PS-5 effective November 13,
2004. Consequently, complainant's transitional position was upgraded
to the PS-5 level on November 13, 2004, and her hourly rate of pay
was increased. The record also indicates that when complainant's
term of employment ended in May 2005, she was reappointed to another
term of temporary employment-from May 16, 2005 through December 31,
2005-again as a CFS clerk, PS-5, and transitional employee. Ultimately,
complainant was terminated from her position, effective November 10,
2005, for unacceptable conduct.
On October 3, 2005, complainant contacted an agency EEO counselor
asserting a class claim of discrimination when, on August 23, 2005,
transitional and casual employees were told their work hours were
being reduced, which resulted in lower pay for these employees.2 On
November 18, 2005, complainant, as class agent, filed a formal class
complaint on the matter, claiming that, due to unlawful retaliation for
prior protected EEO activity, transitional and casual employees did not
receive the expected monetary benefit from reclassification of the CFS
clerk position from level PS-4 to PS-5 because at the same time their
position was upgraded, their hours were cut.
The complaint was forwarded by the agency to an EEOC Administrative
Judge (AJ) for a decision on class certification. By decision dated
March 30, 2006, the AJ dismissed the class complaint on the grounds that
complainant failed to meet the requirements of numerosity, typicality,
commonality and adequacy of representation prerequisite for maintaining
a class action. Regarding numerosity, the AJ found that complainant
provided no information on the number of potential class members, despite
being asked to do so by the AJ. Regarding typicality and commonality,
the AJ found that complainant failed to identify her prior EEO activity
and the record showed she had no previous EEO complaints filed with
the agency. Regarding adequacy of representation, the AJ found that
complainant provided no information regarding her experience, professional
competence, or possession of adequate resources to demonstrate her ability
to adequately represent the class. The AJ also found that her failure
to respond to the AJ's request for information further indicated that
complainant could not adequately represent the interests of the class.
For these reasons, the AJ dismissed the class complaint and remanded
complainant's claim to the agency for processing as an individual
complaint.
On April 7, 2006, the agency issued its final action fully implementing
the AJ's decision to dismiss the class complaint. On April 20, 2006,
the agency issued a final decision on complainant's individual complaint,
dismissing it, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO counselor contact. The instant appeal by complainant followed.
In her statement submitted on appeal, complainant neither addresses the
AJ's findings regarding numerosity, commonality, typicality, or adequacy
of representation, nor the agency's decision to dismiss her individual
complaint on timeliness grounds.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. In particular, complainant
failed to establish the commonality or typicality of her retaliation
claim with the putative class members because there is no indication
in the record that complainant engaged in prior protected activity or
previously filed an EEO complaint, or that any of the other purported
class members, who she failed to identify, did the same. We also
note that there are serious concerns about complainant's ability to
represent a class in this matter as she has not secured adequate legal
representation and appears ill-prepared to represent the interests of
the class on her own. We therefore discern no basis to disturb the AJ's
decision to dismiss the class complaint.
Regarding her individual complaint, the agency dismissed the complaint for
untimely EEO counselor contact. In its final decision, the agency asserts
that the alleged discriminatory event occurred in January 2004,3 but
complainant did not initiate contact with an EEO Counselor until October
3, 2005. EEOC regulations at 29 C.F.R. � 1614.105(a)(1) and .107(a)(2)
allow an agency to dismiss a complaint on the grounds of timeliness if
the aggrieved person did not initiate contact with an agency EEO counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective date
of the action. In her individual complaint, complainant has alleged that
her hours were reduced as a result of unlawful retaliation for engaging
in prior protected activity. An examination of the EEO counseling
report related to her complaint reveals that complainant alleged that
on August 23, 2005, she and the other transitional and casual employees
were told that, effective September 9, 2005, their hours were being
reduced, which effectively resulted in lower pay for those employees as
compared to permanent employees occupying the same position. The report
also establishes that complainant first initiated contact with an EEO
counselor on October 3, 2005, within 45 days of both dates. Therefore,
the agency's decision to dismiss the individual complaint as untimely
was improper and must be reversed.
Accordingly, the agency's decision to dismiss complainant's class
complaint was proper and is hereby AFFIRMED. The agency's decision to
dismiss complainant's individual complaint was improper, and is REVERSED.
The individual complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded individual complaint in
accordance with 29 C.F.R. � 1614.108 et seq. The agency shall acknowledge
to the complainant that it has received the remanded complaint 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 (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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), 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
19848, Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
February 9, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 We note that a careful examination of the EEO Counselor's Report reveals
that complainant's claim was that the difference in pay resulted from the
employee's status as a permanent or temporary employee-in other words,
permanent employees were paid more than transitional or casual employee
doing the same job.
3 It is unclear what the agency is asserting happened in January 2004.
Contrary to its final decision, in its brief submitted on appeal, the
agency argues that the alleged discriminatory event occurred on November
13, 2004, the date when the CFS clerk positions were upgraded to the
PS-5 level.
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01A63015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20036
6
0120063015