05970973
10-28-1999
Gary Yovan, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Gary Yovan, )
Appellant, )
) Request No. 05970973
v. ) Appeal No. 01955786
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On August 8, 1997, the Equal Employment Opportunity Commission
(Commission) received a request from the Department of the Treasury
(hereinafter referred to as the agency) to reconsider the decision in
Gary Yovan v. Robert E. Rubin, Secretary, Department of the Treasury,
EEOC Appeal No. 01955786 (July 17, 1997). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the agency's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly reversed
the final agency decision finding that the complaint herein did not meet
the prerequisites for class certification.<1>
BACKGROUND
The record in this case reveals that appellant, an Import Specialist with
the agency's Customs Service, filed a formal class complaint in August
1994, alleging that males, particularly males over 40 years of age, were
being discriminated against with regard to the selection for Supervisory
Customs Entry Officer positions. Appellant himself had been nonselected
for such positions under two vacancy announcements, and asserted that the
discrimination was being carried out service-wide. The agency forwarded
the complaint to the appropriate EEOC District Office for assignment to
an Administrative Judge (AJ), who would determine whether the complaint
should be certified as a class complaint.
In a recommended decision dated May 11, 1995, the AJ found that the
complaint met the prerequisites for class certification. The AJ based
his decision in large part on statistical data provided by the agency
for all applicants for the position in question from 1992 through 1994.
The AJ recommended the certification of a class of all males, and a
sub-class of all males 40 years of age and older, who had applied and been
nonselected for Supervisory Customs Entry Officer positions since 1992.
On June 30, 1995, the agency rejected the AJ's recommended decision,
and issued a final decision finding that the complaint did not meet the
requirements of commonality, typicality, and adequacy of representation.
The previous decision reversed the final agency decision. The previous
decision concurred with the AJ's determination that the complaint met the
prerequisites for class certification. The previous decision recognized
that a class agent has limited access to precertification discovery.
In addition, the previous decision found no reason to disturb the AJ's
finding that appellant was able to provide adequate class representation.
In its request for reconsideration, the agency reiterated arguments made
in the final decision that the complaint did not meet the prerequisites of
commonality, typicality, and adequacy of representation.<2> The agency
stated that appellant made only general allegations of discrimination
without presenting corroborating evidence. The agency questioned
the statistical analysis of the data provided, stating that while
the AJ noted that only 25 selectees were over 40 years of age, there
were actually 31 such individuals. The agency contended that the AJ
provided no specific rationale to support his findings in the matter.
Finally, the agency questioned appellant's ability to provide adequate
representation, stating that there was no evidence that appellant was
familiar with the EEO process, class actions, or Title VII, and that
there was a possible conflict of interest.
Appellant countered that the agency's request did not meet the criteria
for reconsideration. Appellant stated that the AJ correctly analyzed the
data provided, which showed a significant difference in the gender and
age of the selectees. Further, appellant stated that he can adequately
represent the class, noting that he has acted in a representative capacity
in the past.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989).
After a careful review of the previous decision, the agency's request
for reconsideration, appellant's response thereto, and the entire record,
the Commission finds that the agency's request fails to meet the criteria
in 29 C.F.R. �1614.407(c). Specifically, like the previous decision,
we find that the AJ properly determined that the complaint met the
prerequisites for class certification set forth in EEOC Regulation 29
C.F.R. �1614.204(a)(2).
The agency asserted that appellant made only general allegations of
discrimination without providing any supporting evidence. Nevertheless,
the Commission finds that the members of the instant class have common
factual issues, that is, whether they were nonselected for the specific
position of Supervisory Customs Entry Officer because of gender and age.
The Commission recognizes that there is some question regarding the
numerical evidence contained in the record. While the agency asserted
that the AJ incorrectly referenced the number of selectees over 40 years
of age, the summary of evidence provided supports the AJ's calculation.
Thus, there appears to be some discrepancy between the selection
registers and the summary. Nevertheless, the information provided
appears sufficient to support the AJ's finding that the complaint met the
prerequisites of commonality and typicality. In so finding, we note that
the Commission has recognized that a class agent has limited access to
precertification discovery, and that an AJ has the latitude to redefine
a class, subdivide it, or recommend dismissal if it is discovered that
there is no longer a basis to proceed as a class complaint. Hines, et
al. v. Department of the Air Force, EEOC Request No. 05940917 (January
29, 1996). The agency's challenge to appellant's purported evidence
showing gender and age discrimination inappropriately addresses the
merits of the claim prior to a hearing.
With regard to the matter of adequacy of representation, the Commission
agrees with the previous decision that there is no reason to disturb the
AJ's findings at this time. The AJ noted that appellant has previously
served in a representative capacity in administrative proceedings,
and agreed to secure the services of an expert witness. The AJ
was also persuaded that appellant understood his responsibility to
represent the class. The Commission finds that the agency's concerns
are speculative and insufficient, at the present time, to show that
the adequacy of representation prong has not been satisfied. As noted
by the previous decision, appellant can later be required to hire an
attorney if circumstances indicate that he is unable to provide adequate
representation. See Byrd, et al. v. Department of Agriculture, EEOC
Request No. 05900291 (May 30, 1990). Consequently, based on our review
of the record, we find that the agency has failed to provide evidence
which would warrant a reconsideration of the previous decision.
CONCLUSION
After a review of the agency's request for reconsideration, appellant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request fails to meet the criteria
of 29 C.F.R. �1614.407(c), and it is therefore the decision of the
Commission to DENY the agency's request. The decision in EEOC Appeal
No. 01955786 (July 17, 1997) remains the Commission's final decision.
The agency shall comply with the provisions of the Order set forth below.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
ORDER
The agency is ORDERED to process the remanded class complaint in
accordance with 29 C.F.R. �1614.204(e) et seq. Within fifteen (15)
calendar days of the date this decision becomes final, the agency shall
notify all class members of the acceptance of the class complaint in
accordance with the requirements of �1614.204(e). Within thirty (30)
calendar days of the date this decision becomes final, the agency shall
provide the appropriate EEOC District Office with a copy of the notice
sent to the class members, and shall request the appointment of an
administrative judge, who shall undertake the continued processing of
the complaint pursuant to �1614.204(f) et seq. The agency shall provide
a copy of the notice of certification and request for appointment of an
administrative judge to the Compliance Officer, as referenced below.
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 RECONSIDERATION
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. 28, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat1The previous
decision also determined that the
agency erred in dismissing the
complaint on the grounds that it
was untimely filed. The agency did
not challenge that finding in its
request for reconsideration, and,
accordingly, the matter will not be
addressed herein.
2The agency acknowledged, in its final decision, that the complaint met
the prerequisite of numerosity.