01A62475
07-21-2006
Agency.
Timothy T. DeVito,
Class Agent,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 01A62475
Agency No. 06.003C
Hearing No. 310-2006-00064X
DECISION
The class agent filed a timely appeal with this Commission from the
agency's final order dated February 3, 2006, implementing the dismissal by
the EEOC Administrative Judge (AJ) of the class 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 the class complaint, the class agent alleged that he and the class of
employees he proposed to represent ("non-mobile AAFES managers" over 40)
were subjected to discrimination on the basis of age when, in June 2005,
they was notified that, effective June 1, 2008, the agency would
discontinue its Cost of Living Adjustments (COLA) for all local hires in
Alaska, Hawaii, Guam, Puerto Rico and the U.S. Virgin Islands.
The matter was forwarded to the AJ. Complainant submitted to the AJ his
brief in support of class certification. The AJ issued her decision
denying class certification on January 26, 2006. The AJ dismissed the
complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), finding failure to state
a viable claim because no employee had yet been harmed by the
discontinuance of the COLA because it did not go into effect until 2008.
The AJ further noted that since the challenged policy had not yet gone into
effect, she did not have sufficient information to analyze the class
requirements of numerosity or typicality. Finally, the AJ indicated that
there was no evidence that the purported class was being represented by a
representative experienced in prosecuting class complaints.
The agency implemented the AJ's decision, dismissing the class complaint
pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant appealed.
The purpose of class action complaints is to economically address claims
"common to [a] class as a whole ... turn[ing] on questions of law
applicable in the same manner to each member of the class." General
Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982). Under
EEOC regulations, a class complaint must allege that: (i) the class is so
numerous that a consolidated complaint concerning the individual claims of
its members is impractical; (ii) there are questions of fact common to the
class; (iii) the class agent's claims are typical of the claims of the
class; and (iv) the agent of the class, or, if represented, the
representative, will fairly and adequately protect the interests of the
class. 29 C.F.R. � 1614.204(a)(2). A class complaint may be dismissed for
failing to meet the above-listed requirements, or for any grounds provided
in 29 C.F.R. � 1614.107(a).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to state
a claim. An agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that he or she has been discriminated
against by that agency because of race, color, religion, sex, national
origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved
employee" as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy. Diaz v.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find that the class agent has not shown that the
discontinuance of the COLA in 2008 has resulted in any "present" harm to
himself or any other member of the purported class. A review of the record
shows that the agency has approved of the discontinuance of the COLA, but
that the new policy will not go into effect until July 2008. Since the
COLA has not actually been discontinued, it would be speculative and
premature to address the issue in a class complaint. Therefore, we find
that the AJ's dismissal of the class complaint was appropriate.
Accordingly, we affirm the agency's final order implementing the AJ's
decision.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 21, 2006
__________________
Date