Cheryl M. Fosnacht, et. al., Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01992528 (E.E.O.C. Mar. 29, 2000)

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.