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