Appellants, )

Equal Employment Opportunity CommissionOct 27, 1999
01983036 (E.E.O.C. Oct. 27, 1999)

01983036

10-27-1999

Appellants, )


P. Edgardo Tarrats, and Ivan Rivera, et al. v. Federal Deposit Insurance

Corporation

01983036

October 27, 1999

P. Edgardo Tarrats, and )

Ivan Rivera, et al., )

Appellants, )

) Appeal No. 01983036

v. ) Agency No. FDIC-94-59

)

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance )

Corporation, )

Agency )

)

DECISION

INTRODUCTION

On March 4, 1998, P. Edgardo Tarrats and Ivan Rivera (hereinafter

referred to as the appellants or co-agents), timely initiated an appeal

to the Equal Employment Opportunity Commission (the Commission) from the

final agency decision (FAD) dated February 18, 1998, concerning their

class action complaint of unlawful employment discrimination in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

On January 12, 1998, the Commission issued a decision and order reversing

the agency's final decision rejecting the Administrative Judge's (AJ)

class certification, and remanding the complaint to the agency for

further processing as a class complaint in accordance with the order. See

P. Edgardo Tarrats, Ivan Rivera, et al. V. Federal Deposit Insurance

Corporation, EEOC Appeal No. 01960433 (January 12, 1998). In its

decision, the Commission found no error with the AJ's recommendation

that the agency accept the complaint for processing as a class, and

defined the class as "[A]ll Hispanic employees, current and former at

[the agency] who were not recruited, promoted, or assigned to positions

of greater responsibility (including but not limited to upper and senior

management positions)." Neither party filed a request for reconsideration

pursuant to 29 C.F.R. �1614.407(b).

On February 18, 1998, the agency issued a FAD "adopting" the Commission's

January 12, 1998, decision as its final decision with appeal rights to the

Commission. In its decision, the agency defined the class as follows:

Whether as a result of discrimination on the basis of national origin

(Hispanic) since August 15, 1994, all Hispanic employees at all grade

levels have been denied promotions or other desirable assignments at the

[agency].

The Co-Agents advised the agency that they objected to the agency's

departure from the AJ's definition of the class and this appeal followed.

Because neither party requested reconsideration, the Commission's decision

in EEOC Appeal No. 01960433 is final. That decision reversed the agency

and affirmed the class definition as defined in the AJ's December 15,

1995, certification and ordered the agency to process the matter in

accordance with the applicable regulations. Nothing in the regulations

provides for the agency to adopt that decision as its final agency

decision or to modify the definition of the class after the previous

decision becomes final. As such, the agency's FAD is null and void and

the agency is directed to process the matter as set forth in Appeal

No. 01960433.

ORDER

The agency is ORDERED to process the remanded class complaint as defined

in EEOC Appeal No. 01960433 (January 12, 1998) and in accordance with

29 C.F.R. �1614.204(e) et seq. The agency shall acknowledge to the

appellant that it has received the remanded complaint within fifteen

(15) calendar days of the date this decision becomes final.

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(c) (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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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. 27, 1999

______________ ___________________________

DATE Carlton Haddon, Acting Director

Office of Federal Operations