05960870
10-01-1998
Ann M. Garcia, Appellant, v. Janet Reno, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Ann M. Garcia v. Department of Justice
05960870
October 1, 1998
Ann M. Garcia, )
Appellant, )
)
v. ) Request No. 05960870
) Appeal No. 01941485
Janet Reno, ) Agency No. 89-66598-005
Attorney General, ) Hearing No. 033-93-5688X
Department of Justice )
(Drug Enforcement Administration), )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On September 20, 1996, Ann M. Garcia (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider the
decision in Ann M. Garcia v. Janet Reno, Attorney General, Department of
Justice, EEOC Appeal No. 01941485 (April 3, 1995).<1> EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications, 29
C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is granted in part.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision finding that appellant's class complaint
should not be certified.
BACKGROUND
Appellant filed a class complaint in March 1993 in which she alleged
that female Special Agents had been discriminated against regarding the
receipt of both foreign assignments and promotions to the GM-14 level.
The complaint was subsequently forwarded to an administrative judge (AJ),
who proceeded to issue a decision finding that neither proposed class
should be certified. Thereafter, the agency issued a final decision
(FAD) in which it also concluded that neither proposed class should
be certified.
Appellant appealed and the prior decision affirmed the FAD. The decision
found that, with regard to the class pertaining to foreign assignments,
appellant had satisfied the prerequisites of commonality, typicality,
and adequacy of representation. It found, however, that appellant had
not satisfied the numerosity prerequisite. Regarding the class relating
to GM-14 promotions, the decision found that, although appellant had
satisfied the adequacy of representation prerequisite, she had not
satisfied the other three prerequisites. In particular, the decision
found that appellant herself had not applied for promotion to the GM-14
level.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets the criterion of 29 C.F.R. �
1614.407(c)(2). It is therefore the decision of the Commission to grant
the request in part.
An individual seeking to maintain a class action is required to
meet the "prerequisites of numerosity, commonality, typicality, and
adequacy of representation" set forth at 29 C.F.R. � 1614.204 et seq.
This section, which is an adoption of Rule 23(a) of the Federal Rules of
Civil Procedure, provides that the agency may reject a class complaint if
any one of these prerequisites is not met. 29 C.F.R. � 1614.204(d)(2).
As noted, the prior decision found that, regarding the foreign assignment
class, appellant had satisfied the prerequisites of commonality,
typicality, and adequacy of representation. In concluding that appellant
had not satisfied the numerosity prerequisite, the decision found that,
of the 26 proposed class members identified in the class complaint, only
11 had actually applied for and been denied foreign assignments in favor
of male Special Agents. The Commission is not persuaded, however, that
this class need be limited to those individuals initially identified in
the complaint. In this regard, discovery which was conducted reveals
that, between 1990 and 1992, approximately 75 female Special Agents
competed for over 100 foreign assignments, 88 of which were filled.
Of the 113 Special Agents who were selected by the all-male Career Board
for those 88 assignments,<2> 106 were male and only 7 were female.
Based on the foregoing, the Commission agrees with appellant and concludes
that there are a sufficient number of female Special Agents who were
non-selected for foreign assignments to constitute a viable class.
Accordingly, it is the decision of the Commission to certify the
class complaint as it pertains to the denial of foreign assignments,
the relevant class being those female Special Agents who were denied
foreign assignments between 1990 and 1992.
Regarding the second proposed class, the Commission finds no basis
for disturbing the prior decision's conclusion that appellant has not
satisfied the requisite criteria for certification. In particular,
we agree that, because appellant never actually applied for promotion
to the GM-14 level during the period in question, it is not apparent
how her claim can be either common with or typical of the claims of
those female Special Agents who did. Furthermore, it is apparent that
appellant's primary concern throughout these proceedings has been the
denial of foreign assignments. In this regard, appellant's concern
over promotions appears to be an extension of her concern over foreign
assignments, i.e., that the denial of foreign assignments detrimentally
affects the ability of female agents to get promoted to the GM-14 level.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission GRANTS the request
in part. The decision in EEOC Appeal No. 01941485 (April 3, 1995)
remains the Commission's final decision, except as MODIFIED herein.
The case is REMANDED to the agency for processing in accordance with
the ORDER below. There is no further right of administrative appeal on
a decision of the Commission on this Request for Reconsideration.
ORDER
The agency is ordered to continue processing of the class complaint as
it pertains to the denial of foreign assignments in accordance with 29
C.F.R. � 1614.204(e) et seq. The agency shall acknowledge to appellant
that it has received the remanded complaint within fifteen (15) calendar
days of the date this decision becomes final.
The agency shall provide a copy of the notice of certification and request
for appointment of an Administrative Judge to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 1, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 Although appellant's request to reconsider was received over one year
after the prior decision was issued, she states that she did not receive
a copy of the decision until after contacting this office in August 1996.
Because there is no evidence which indicates that appellant received a
copy of the previous decision prior to that time, we have treated her
request as timely.
2 A number of these assignments had multiple vacancies.