Otis Anderson, et al., Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 15, 1999
01986541 (E.E.O.C. Oct. 15, 1999)

01986541

10-15-1999

Otis Anderson, et al., Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Otis Anderson, et al. v. Department of the Navy

01986541

October 15, 1999

Otis Anderson, et al., )

Appellant, )

)

v. ) Appeal No. 01986541

) Agency No. 96-65888-006

) Hearing No. 340-96-3329X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

On August 25, 1998, appellant, the class agent, timely filed an appeal

to this Commission from a June 18, 1998 final agency decision which

was received by him on July 30, 1998, concerning his class complaint

and his individual complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.

The record indicates that appellant, a Sheet Metal Aircraft, WG-10,

on behalf of himself and thirty-two current and one former employee in

WG-5/8/9/10, filed a class complaint dated November 22, 1995, alleging

discrimination based on race (Black) concerning unfair and/or less

desirable field service assignments; delay in promotions to journey level

and crew leader; discipline, termination, and other lesser punishments;

harassment; and unfair and lower rated performance appraisals.

On May 21, 1998, an EEOC Administrative Judge (AJ) issued a decision

recommending that the agency dismiss appellant's class complaint

on the grounds that it did not satisfy the criteria of commonality,

typicality, and adequacy of representation under 29 C.F.R. �1614.204(a).

Specifically, the AJ found that appellant failed to establish that the

class had adequate representation. The AJ noted that when appellant was

asked whether the proposed class met the requirements of commonality,

typicality, numerosity and adequacy of representation, he did not make any

relevant response. The AJ further indicated that there was insufficient

specificity and detail to compare those actions affecting appellant and

those affecting the proposed class members.

In his decision, the AJ also recommended that the agency dismiss

the class complaint due to its untimely filing. The AJ stated that

although appellant received a notice of final interview on November

3, 1995, he did not file the class complaint until November 22, 1995,

which was beyond the 15-day time limit. Specifically, the AJ noted that

on November 20, 1995, the last day to file a timely formal complaint,

appellant asked for a 2-day extension for filing his class complaint due

to his illness. The agency agreed to the requested extension provided

that appellant submitted medical documentation of his alleged illness.

The AJ noted that the documentation that was provided did not verify the

asserted length of the illness. The record indicates that appellant

asserted that he was ill for 11 days, but his documentation indicated

that he was sick for only 7 days (November 7 through 14, 1995).

The AJ further pointed out that appellant asserted that he stopped by

the Personnel Office on November 16, 1995, to file his class complaint

but was unable to do so due to the federal government furlough. The AJ,

however, found that appellant's assertion was not persuasive since the

Personnel Office was open and staffed by four employees that day.

The AJ also found that appellant's EEO Counselor contact on July 6,

1995, with regard to the allegations in the class complaint, with the

exception of certain field service assignments on May 27, 1995, was

beyond the 45-day time limit set by the regulations.

In its final decision, the agency dismissed appellant's class complaint,

as recommended by the AJ. Furthermore, the agency dismissed appellant's

individual complaint due to untimely filing of a formal complaint in

accordance with the reasons set forth in the AJ's decision.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that a "class

complaint" is a written complaint of discrimination filed on behalf

of a class by the agent of the class alleging that: (1) the class is

so numerous that a consolidated complaint of the members of the class

is impractical; (2) there are questions of fact common to the class;

(3) the claims of the agent of the class are typical of the claims of

the class; and (4) the agent of the class, or his/her representative,

if any, will fairly and adequately protect the interests of the class.

Furthermore, we note that the failure of the complaint to meet only

one of the criteria is sufficient for rejection. General Telephone

Company of the Southwest v. Falcon, 457 U.S. 147 (1982); Charles, et

al. v. Department of the Navy, EEOC Request Nos. 05880256-9 (November

29, 1988). Also, the party seeking certification of the class bears

the burden of demonstrating that all four (4) prerequisites are met.

See Smith v. Merchants & Farmers Bank of West Helena, 574 F.2d 982

(8th Cir. 1978).

Upon review, we find no reason to disturb the AJ's recommended decision

finding that the class complaint should not be certified since it did

not meet the requirements of 29 C.F.R. �1614.204(a). We, further, find

that the agency properly dismissed appellant's individual complaint due

to untimely filing of a complaint, pursuant to 29 C.F.R. �1614.107(b).

The record indicates that appellant received a notice of final interview

on November 3, 1995. The record also indicates that appellant

received a 2-day extension to file his complaint provided that he

submit the necessary documentation to prove his alleged 11-day illness.

Appellant filed his complaint on November 22, 1995, but he failed to

provide the requested documentation. Thus, we find that appellant's

complaint was filed beyond the 15-day time limit in accordance with 29

C.F.R. �1614.106(b). On appeal, appellant, other than filing a notice

of appeal, does not raise any new contentions nor does he provide any

justification for his untimely complaint.

Accordingly, the agency's final decision is hereby AFFIRMED.<1>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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 (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:

October 15, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Although the agency also dismissed the class complaint due to its

untimely filing, as recommended by the AJ, we need not discuss this matter

since the dismissal of the class complaint is affirmed for failure to meet

the criteria of commonality, typicality, and adequacy of representation.