Agency.

Equal Employment Opportunity CommissionJul 21, 2006
01A62475 (E.E.O.C. Jul. 21, 2006)

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