Gary Yovan, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
05970973 (E.E.O.C. Oct. 28, 1999)

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.