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.