Jan Gonzales and Linda Owens, Complainants,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01980685 (E.E.O.C. Jul. 6, 2000)

01980685

07-06-2000

Jan Gonzales and Linda Owens, Complainants, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Jan Gonzales and Linda Owens v. Department of Transportation

01980685

July 6, 2000

Jan Gonzales and Linda Owens, )

Complainants, )

)

v. ) Appeal No. 01980685

) Agency No. DOT-6-97-6030

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

The complainants filed a timely appeal with this Commission from a

final agency decision (FAD) dated October 10, 1997 which dismissed

their class complaint as a class and as individual complaints.<1>

The complaint alleged violations of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted

under 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29 C.F.R. �

1614.405).

ISSUES PRESENTED

Whether the class complaint in the form of a class complaint and the

individual complaint of complainant Gonzales should be dismissed because

they were the basis of a civil action that was dismissed with prejudice;

and whether the agency properly dismissed the individual complaint of

complainant Owens for failure to timely seek EEO counseling and stating

the same claims in prior complaints.

BACKGROUND

In January 1997, the complainants filed a class complaint seeking

certification of a class complaint composed of all female former,

current and future air traffic controllers, and applicants and trainees

for this position, in the agency's Federal Aviation Administration

who have been, are, or will be discriminated against on the bases of

sex or reprisal for participating in the EEO process with regard to

hiring, training, assignments, evaluations, promotional opportunities,

promotions, disciplinary actions, all terms and conditions of employment,

harassment, and failure to properly respond to filed EEO complaints by

these females.

Complainant Gonzales specifically alleged that in November 1996,

a co-worker made offensive remarks and gestures of a sexual nature,

that she complained to management about the incident, and since that

time her co-workers will not look at or speak to her, causing her fear.

Complainant Owens specifically alleged that: (1) in October 1996,

an unfavorable story appeared in the newspaper, television and radio

identifying her as being responsible for a near mid-air collision and/or

other problems, which was the result of information given to reporters by

her superiors and co-workers, (2) in October and November 1996 she was

denied familiarization trips and annual leave, (3) and in November 1996

she was reassigned, demoted in pay, and treated as a training failure.

In June 1997, an Equal Employment Opportunity Commission Administrative

Judge (AJ) issued a recommended decision that the class complaint not

be certified, and that the agency resume processing it as individual

complaints of complainants Gonzales and Owens. The FAD adopted the

recommended decision of the AJ not to certify the class. It also

dismissed the individual complaints on procedural grounds.

Thereafter, the complainants filed the instant appeal. Complainant Owens

later withdrew as a class agent. Meanwhile, in June 1998, complainant

Gonzales and four other plaintiffs filed a civil action class and

individual complaint 98-CV-2234 in the United States District Court,

Northern District of California. The civil action alleged jurisdiction

under Title VII of the Civil Rights Act of 1964, and contained the same

class claims, as well as individual claims of complainant Gonzales,

that were in the administrative class complaint. According to the

court's case docket, the civil action was dismissed with prejudice by

stipulation and order on February 7, 2000.

ANALYSIS AND FINDINGS

Complainant Gonzales

Under 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �

1614.107(a)(3)), an agency must dismiss a complaint that is the basis

of a civil action decided by a United States District Court in which the

complainant was a party. Such is the case here with regard to the class

complaint and the ensuing individual complaint of complainant Gonzales.

Accordingly, they are dismissed.

Complainant Owens

As noted above, the class complaint is dismissed under 29 C.F.R. �

1614.107(a)(3). We also add that complainant Owens previously withdrew

as administrative class agent and there is no indication that anyone

else seeks to prosecute the administrative class complaint.

The agency dismissed a portion of the class complaint as an individual

complaint of complainant Owens under 64 Fed. Reg. 37,644, 37,656 (1999)

(to be codified as 29 C.F.R. � 1614.107(a)(1)) for stating the same

claims pending before or that had been decided by the agency. But the

record does not contain any documentation to support this finding, e.g.,

the other complaints and/or AJ and agency decisions on them. Accordingly,

the dismissal on this grounds is vacated.

The agency also dismissed a portion of the above individual complaint,

i.e., hiring, training, disciplinary actions, promotions, and promotional

opportunities under 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as

29 C.F.R. � 1614.107(a)(2)) for raising matters that have not been brought

to the attention of a counselor and are not like or related to a matter

that has been brought to the counselor's attention. This is contradicted

by the record. The counselor's report indicates that during counseling

complainant Owens discussed her involuntary reassignment and demotion

in pay, and during the counseling period she sent correspondence dated

December 16, 1996 to the EEO counselor alleging discrimination regarding

promotions, training, and compensation benefits. This correspondence

also generally alleged harassment and disparate treatment. Accordingly,

the dismissal under 29 C.F.R. � 1614.107(a)(2)) is vacated.

CONCLUSION

The administrative class complaint of complainants Gonzales' and Owens

is dismissed, and the individual complaint of complainant Gonzales

is dismissed. The agency's dismissal of the individual complaint of

complainant Owens is vacated, and it is remanded in accordance with the

order below.

ORDER

The agency is ORDERED, within 30 calendar days of its receipt of this

decision, to contact complainant Owens in writing and ask her to specify

the class allegations she wishes to pursue as a new individual complaint,

and sufficiently specify the allegations so they can be investigated or

reviewed for possible dismissal under the grounds in 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified as 29 C.F.R. � 1614.107). If complainant

Owens indicates there are allegations in the class complaint she wishes

to pursue as a new individual complaint, the agency must process the

complaint pursuant to 29 C.F.R. � 1614.106 et seq. A copy of the above

letter to be sent to the complainant 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 (S0400)

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. If you

file a request to reconsider and also file a civil action, 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:

July 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov. Where an agency dismisses a class

complaint, it must inform the class agent either that the complaint is

being filed as an individual complaint or is also being dismissed as an

individual complaint. 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified

as 29 C.F.R. � 1614.204(d)(7)).