01994281
05-03-2000
Harold L. Bibb, et al. Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Harold L. Bibb, et al. )
Complainant, )
)
v. ) Appeal No. 01994281
) Agency No. 96-0022C
Lawrence H. Summers, ) Hearing No. 250-96-8285X
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On April 30, 1999, complainant (the class agent) filed a timely appeal
from the agency's April 5, 1999 final decision finding that his class
complaint should be dismissed and dismissing the class agent's individual
complaint. On appeal, complainant argues that the agency failed to
issue its decision within thirty days of receiving an EEOC Administrative
Judge's (AJ's) findings. He requests that the AJ's decision to certify
the class be considered the final decision concerning the acceptability
of his complaint.
On August 7, 1996, complainant, as the class agent, filed a class
complaint of discrimination. Pursuant to Commission regulations, the
claims were forwarded to an AJ for a determination of whether the class
should be certified. By decision dated February 26, 1999, the AJ found
that the class complaint should be certified.
On appeal, complainant submitted a copy of a signed Domestic Return
Receipt addressed to the agency which shows that the agency received the
AJ's decision (with case file) on March 3, 1999. Complainant argues
that the agency's final decision should have been rendered by April 2,
1999 to avoid adoption of the AJ's findings. In its final decision,
the agency stated that it received the AJ's findings on March 4, 1999.
EEOC Regulation 29 C.F.R. � 1614.204 provided that the AJ's findings
would be adopted as the final decision if the agency failed to issue
a decision within thirty calendar days.<1> Thirty calendar days from
Wednesday, March 3, 1999, was Friday, April 2, 1999. The agency failed
to issue its final decision until Monday, April 5, 1999. Therefore, the
AJ's recommendation certifying the class became the agency's decision.
Accordingly, the agency's dismissal of the class and individual complaint
is REVERSED and the class complaint is REMANDED for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process the remanded claims in accordance with 64
Fed. Reg. 37,644, 37,658 (1999) (to be codified as 29 C.F.R. � 1614.204).
The agency shall acknolwedge receipt of the remanded claim within fifteen
calendar days of the date this decision becomes final. Also, the agency
must notify all class members of the acceptance of the class complaint,
as provided in 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified as 29
C.F.R. � 1614.204(e)).
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
May 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1At the time of the AJ's decision, the regulations in effect
provided that the agency must issue a decision within thirty (30)
calendar days of the date of receipt of the AJ's decision. As of
November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect.