05980928
11-09-2000
Frieda Golden, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Frieda Golden v. Department of the Air Force
05980928
November 9, 2000
.
Frieda Golden,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Request No. 05980928
Appeal No. 01960693
Agency No. MUOF93237
Hearing No. 370-95-X2324
DENIAL OF REQUEST FOR RECONSIDERATION
On March 10, 1998, complainant timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Frieda Golden v. Department of the Air Force, EEOC Appeal
No. 01960693 (February 6, 1998).<1> EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In her original complaint, complainant alleged that she was discriminated
against on the bases of race (Black), color (black), national origin
(African), and sex (female) when, among other actions, on February 7,
1993, she was not classified as a Supply Systems Analyst, GS-2003-11,
upon the termination of the Pacer Share Project (Project). She further
alleged that management officials treated her less favorably than other
employees by manipulating civilian personnel policies, resulting in
complainant being classified as a GS-2001-9, her existing grade, upon
termination of the Project, while a male employee was reclassified from
a GS-9 to a GS-2003-11. In her Recommended Decision (RD), however, the
EEOC Administrative Judge (AJ) found no discrimination on any basis, as
complainant failed to establish a prima facie case of discrimination.
In this regard, complainant did not identify any similarly situated
employees outside of her protected groups who were treated more favorably
under similar circumstances. The AJ concluded that complainant failed to
present sufficient evidence proving that the agency's treatment of her
was motivated by discriminatory intent. Thereafter, the agency issued
a FAD agreeing with the AJ's RD that complainant failed to prove that
she was discriminated against. It also noted that 28 employees in the
2001 series exited the Project classified at the GS-11 level, while only
22 in the 2001 series, including complainant, exited at the GS-9 level,
thus contradicting complainant's contention that placement in the 2001
series precluded classification at the GS-11 level. On appeal, the
Commission then affirmed the FAD.
In her request, complainant contends that the appellate decision involved
a clearly erroneous interpretation of law, in that in one of the cases
with which her own was consolidated for a hearing, the agency admitted
discriminating against the particular complainant in that case. See
Mary L. Jenkins v. Department of the Air Force, Agency No. AR000950594
(September 29, 1995). The present complainant argues that since the
circumstances were similar in both cases, and the responsible management
officials (RMOs) the same, the second complaint should be treated, in
effect, as a class complaint and that she, being a member of the class,
should therefore also be regarded as having been discriminated against
by the agency.
In its comments opposing complainant's request, the agency contends
that complainant has raised no new evidence that has not already been
considered and addressed, and that complainant asserts incorrectly that
her complaint was part of a class complaint. In this regard, we note
that a �class complaint� is a written complaint of discrimination filed
on behalf of a class by the agent of the class alleging that: (1): the
class is so numerous that a consolidated complaint of the members of the
class is impractical; (2) there are questions of fact common to the class;
(3) the claims of the agent of the class are typical of the claims of
the class; and (4) the agent of the class, or his/her representative,
if any, will fairly and adequately protect the interests of the class.
EEOC Regulation 29 C.F.R. � 1614.204(a)(2).
This regulation, which is an adaptation of Rule 23(a) of the Federal Rules
of Civil Procedure, also provides, however, that the agency may reject
a class complaint if it does not meet all of the above prerequisites. 29
C.F.R. � 1614.204(d)(2) and (7). Thus, before it can be considered on
the merits, a class complaint must be certified to be in compliance
with the requirements of 29 C.F.R. � 1614.204. The failure of the
complaint to meet only one of the criteria is sufficient for rejection.
General Telephone Company of the Southwest v. Falcon, 457 U.S. 147
(1982); Moten et al. v. Federal Energy Regulatory Commission, EEOC
Request No. 05960233 (April 8, 1997). One can readily see that the
Jenkins complaint above would fail the first criterion, since it was,
in fact, consolidated for hearing purposes with the instant complaint
and one other, and not certified as a class complaint.
Furthermore, we find that complainant was not similarly situated as the
complainant (C-2) in the Jenkins case, since she was not subject to the
same standards as the latter. Woods v. Milner, 760 F. Supp. 623, 645
(E.D. Mich. 1991). Complainant testified that she had worked primarily
as a Distribution Specialist III in the 2003 series with a Grade of
GS-9 throughout the Project. The record shows, however that the duties
she performed were closer to those in the 2001 series (Supply Support
Specialist) than those in the 2003 series (Supply Systems Analyst).
C-2, on the other hand, worked as a Distribution Specialist III in
the 2003 series with the grade of GS-11 throughout the Project. Hence,
her job duties were substantially different from those of complainant
and, therefore, she was not similarly situated as complainant. Thus,
complainant cannot establish a prima facie case using C-2 as the
comparative employee.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore finds
that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to deny the request.
The decision in EEOC Appeal No. 01960693 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 9, 2000
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.