Frieda Golden, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
05980928 (E.E.O.C. Nov. 9, 2000)

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.