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)).