01992528
03-29-2000
Cheryl M. Fosnacht, et. al., Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Cheryl M. Fosnacht, et. al., )
Complainant, )
) Appeal No. 01992528
v. ) Agency No. 96-0411,96-0412, 96-0414,
) 96-0415, 96-0416, 96-0417
) 96-0420, 96-0421
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
)
Agency. )
____________________________________)
DECISION
Complainants (Cheryl Fosnacht, Bruce Ackerman, Karl Wechter, Lawrence
N. Tenner, Janet Franklin, Maryanne Loftus, Ludwig Meinzer, Eileen Ryan)
filed a timely consolidated appeal of final agency decisions concerning
their complaints of unlawful employment discrimination. They alleged
discrimination on the bases of race (White), and age ( over age 40),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. when the agency refused
to upgrade their positions as Claims Technical Assistant to a GS-12.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the final agency decision.
ISSUE PRESENTED
The issue before us is whether the agency erred in holding the complaints
of individual potential class members in abeyance pending an appeal of
a decision denying certification of the class.
Background
The record reveals that during the relevant time, complainants were
all employed as Claims Technical Assistants, GS�105-11, at the agency's
Great Lakes Service Center facility. Complainants all represented by
the same attorney, alleged that they were discriminated against on the
basis of their race and age when the agency failed or refused to upgrade
their positions from GS-11 to GS-12 while other positions were upgraded.
The agency investigated the complaints but did not release the Reports of
Investigation to the complainants. Instead, the agency issued a letter
stating it would be holding the complaints in abeyance until all appeals
regarding class certification were exhausted.
Concurrent with the complainants' claims, another employee, who also
occupied the position of Claims Authorizer Technical Assistant GS-11,
filed a class complaint alleging age and race discrimination. The class
complaint was referred to an Administrative Judge (AJ) who decided that
the class should not be certified. The putative class agent filed an
appeal of the AJ's decision which is now pending before the Commission.
Analysis and Findings
When a complainant who is a potential member of a class action files
an individual complaint, at or around the same time that a class
complaint is filed, the agency must determine whether the issue in the
individual complaint is identical to that which is presented in the
class complaint. Lehmkuhl v. United States Postal Service, EEOC Request
No. 05910684 (November 21, 1991); see also Hyza v. Social Security
Administration, EEOC Appeal No. 01971607 (July 8, 1997); DuBois v. Social
Security Administration, EEOC Appeal No. 01965222 (April 23, 1997).
If the issues are found to be identical, then the agency should issue
a decision notifying the complainant that his or her complaint will
be held in abeyance pending disposition of the class action. Id. This
procedure is necessary to avoid duplication of administrative resources.
If, however, the issues are not found to be identical, then the agency
should continue to process the individual complaint.
After a review of each of the complaints at issue herein, we conclude
that they concern the same issues and bases of discrimination which
are the subject of the class complaint. For this reason, the agency's
action holding the complaints in abeyance pending the outcome of the
appeal regarding class certification was proper.
Based on the foregoing we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
3/29/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.