Agency.

Equal Employment Opportunity CommissionJan 3, 2003
01A01375 (E.E.O.C. Jan. 3, 2003)

01A01375

01-03-2003

Agency.


Keith C. Pruett v. Department of Defense

01A01375

01-03-03

.

Keith C. Pruett,

Class Agent,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Defense Logistics Agency,

Agency.

Appeal No. 01A01375

Agency No. DM-98-949

DECISION

The class agent filed a timely appeal with this Commission from the

agency's decision dismissing his equal employment opportunity (EEO)

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. The class agent claims the agency discriminated

against him and a class of persons on the bases of race (Caucasian),

sex (male), and reprisal for prior EEO activity when the agency selected

Black employees for training, details, and promotions while disciplining

and discharging Caucasian employees, and encouraging them to resign or

take early retirement.

For the following reasons, the Commission AFFIRMS the agency's final

decision in part, and REMANDS the decision in part.

The record reveals that the class agent, a Materials Examiner and

Identifier at the Defense Distribution Depot, Defense Logistics Agency,

Richmond, Virginia, filed a formal EEO complaint with the agency on

February 9, 1998, claiming that the agency had discriminated against

him and a class of persons as referenced above. Pursuant to 29 C.F.R. �

1614.204(d), the Administrative Judge (AJ) issued a Recommended Decision

(RD) on September 29, 1999, recommending dismissal of the class complaint.

The RD concluded that the class agent failed to meet his obligation to

provide the requisite specificity and detail needed to determine whether

the complaint merited class certification. The RD noted that the class

agent provided no details about the training, details, or promotions that

were allegedly denied to members of the protected classes. In addition,

the RD noted that the class agent's complaint did not meet the typicality

or commonality prerequisite for maintaining a class action because the

class agent failed to show that he has the same interests as the class,

that he has suffered the same harm as the class, or indeed that other

class members suffered any harm.

Finally, the RD noted that the class agent failed to meet the numerosity

requirement because, with only four class members, the class agent had

not shown that, were the other class members to bring individual claims,

the complaints would be so numerous that a consolidated case would be

impractical. The RD further noted that the class agent failed to identify

the other class members with sufficient specificity to determine whether

in fact they were part of his class. In view of the above failings,

the RD recommended dismissal of the class complaint under 29 C.F.R. �

1614.204(d)(2) and (4). The agency's final decision implemented the RD.

From the agency's decision dismissing the class complaint, the class

agent appeals.

On appeal, the class agent briefly mentions other employees he maintains

faced discrimination, presumably in an effort to provide the specificity

the RD found to be lacking. Mostly, however, the class agent on appeal

does not address the RD's findings concerning class certification,

disputing instead the RD's characterization of the issue. The class

agent essentially indicates the correct issue should be whether or not

Black management officials discriminated in favor of Black employees

by providing them with work experience that ultimately helped those

employees gain merit promotions. In addition, the class agent argues that

the agency has a conflict of interest because the agency conducted the

investigation. Finally, the class agent addresses what he characterizes

as false testimony given by agency officials in earlier EEO complaints

filed by the class agent. In response, the agency restates the position

it took in its FAD, and requests that we affirm its final decision.

After a careful review of the record, the Commission finds that the

Recommended Decision properly summarized the relevant facts. With regard

to the issue of class certification, the class agent makes references

to an employee (CW 1: male, race and prior EEO activity unknown) who

allegedly suffered unspecified harassment �on a daily basis, . . .,

until he was found on his forklift dead, . . . shortly after signing on

to the class complaint,� see class agent's Statement on Appeal, p. 4.,

and another employee (CW 2: male, race and prior EEO activity unknown)

who was �hired under the Americans with Disabilities Act,� id., and

who never received a promotion. By his statement, however, the class

agent has still not provided specific details concerning the training,

details, or promotions that were allegedly denied to class members,

nor has he shown that he has the same interests as the class. Indeed,

it is unclear whether the class agent intends to include CW 2 as a class

member since disability has not been claimed as a basis of discrimination.

Finally, the class agent does not address the RD's finding that he does

not meet the numerosity requirement. We therefore discern no basis to

disturb the FAD's denial of class certification.

Regarding the class agent's concern about the characterization of

the issues in this complaint, we note that the RD's characterization

included the allegation that Black employees were selected for training

and details. We therefore discern no substantive difference between the

issue as characterized by the class agent and as characterized in the RD.

Regarding the class agent's allegations of false testimony provided by

agency officials in earlier complaints, we note that such an allegation is

not relevant to the issue of whether or not the class agent satisfied the

requirements for class certification and we therefore decline to address

the issue. Pursuant to 29 C.F.R. � 1614.204(d)(7), when dismissing a

class complaint, the agency shall notify a complainant that the complaint

is also being either accepted or dismissed as an individual complaint.

In the present case, the agency did neither, instead merely notifying the

class agent that �rejection of this complaint as a class complaint does

not preclude the utilization of the individual complaint procedures.�

FAD, p.2. The Commission deems the agency's action to be tantamount to a

dismissal of the individual claim. Accordingly, the agency's dismissal

of the class agent's claim concerning his individual complaint is

REVERSED, and that claim is REMANDED to the agency for further processing.

ORDER (E0900)

The agency is ordered to process the remanded individual claim in

accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to

the complainant that it has received the remanded claim within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to the complainant a copy of the investigative file and

also shall notify the 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 the class agent's request.

A copy of the agency's letter of acknowledgment to the 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 (K0501)

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)

(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 (M0701)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

____01-03-03______________

Date