01a41688
11-08-2005
Otis Johnson, Jr., Complainant, v. Stephen L. Johnson, Acting Administrator, Environmental Protection Agency, Agency.
Otis Johnson, Jr. v. Environmental Protection Agency
01A41688
November 8, 2005
.
Otis Johnson, Jr.,
Complainant,
v.
Stephen L. Johnson,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A41688
Agency No. 2002-0102-R4
Hearing No. 110-2003-08434X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
BACKGROUND
The record reveals that complainant, a GS-13 Environmental Engineer at
the agency's North Program Section, Resource Conservation Recovery Act
Programs Branch of the Waste Management Division facility, filed a formal
EEO complaint on August 15, 2002, alleging that the agency discriminated
against him on the bases of race (African-American), sex (male), age
(D.O.B. October 23, 1951), and reprisal for prior EEO activity when:
(1) he was not selected for the position of Program Management Officer,
GS-0340-13/14, advertised under Vacancy Announcement Number MPP-2001-59
(hereinafter �Position�); and (2) he was subjected to a hostile work
environment culminating in the decision not to select complainant on
the promotion certificate for the Position. Complainant also alleged
that the agency's Region IV's Human Resources Branch has systematically
discriminated against him by failing to properly apply the Office of
Personnel Management Qualification Standards for �specialized experience�
to determine basic eligibility to apply for the Position. In addition,
complainant asserted that the agency's application of the �specialized
experience� requirement has had a negative impact on him as well as
other members of his protected classes.
The agency accepted the complaint for investigation on December 13,
2002, but failed to commence the investigation in a timely manner.
Therefore, after 180 calendar days had passed from the filing of the
complaint, complainant requested a hearing on May 16, 2003. The file was
forwarded to the EEOC for assignment to an EEOC AJ. The EEOC ordered
the agency to conduct its investigation of the complaint. The EEOC
assigned the matter to the AJ on July 23, 2003. The agency issued the
Report of Investigation (ROI) on August 7, 2003, which was received by
complainant on August 12, 2003.
After receipt of the agency's ROI, complainant filed a motion for partial
summary judgment on the claims of reprisal and disparate treatment.
Complainant also moved for certification for a class action on September
25, 2003. The AJ denied complainant's motion as untimely as it was filed
less than two weeks prior to the complainant's scheduled hearing date.
In addition, the AJ denied certification citing complainant's inability
to represent the class as a whole. The agency also moved for partial
summary, however, the AJ determined that there were still facts in
dispute. Therefore, the AJ concluded that a hearing on the individual
complaint was appropriate.
Following a hearing, the AJ issued a decision finding no discrimination.
The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when she issued her
decision finding no discrimination. Further, complainant asserted that
the AJ erred in summarily denying his motion for class certification.
He noted that the regulations permit him to move for class certification
at any reasonable point in the process when it becomes apparent that there
are class implications to the claims raised in an individual complaint.
Further, as to the issue of adequacy of representation, complainant
pointed to prior EEOC decision in which conditional certification of the
class was granted contingent upon finding counsel within a reasonable
period of time. As such, complainant argued that the AJ's dismissal of
his motion for class certification was inappropriate.
ANALYSIS AND FINDINGS
EEOC Regulations provide that a complainant may move for class
certification at any reasonable point in the process when it becomes
apparent that there are class implications to the claim raised in an
individual complaint. 29 C.F.R. � 1614.204(b). If a complainant moves
for class certification after completing the pre-complaint process
contained in � 1614.105, the agency or the AJ, as appropriate, must
advise the complainant of his/her rights and responsibilities as the
class agent. Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chapter 8, Section II(A) (November 9,
1999). EEO MD-110 further notes that a complainant must make his/her
intention to process the complaint as a class action clear to the AJ if
the complaint is at the hearing phase of the process. Id. A complainant
may make his/her intention clear through a letter, a formal motion, or
any means that effectively informs the AJ of the complainant's intent
to purse a class action. Id.
Upon review, we find that complainant's "Notice of Intent to Process
as Class Action" dated September 25, 2003, expressing his intention to
pursue a class complaint, constituted a motion for class certification.<1>
The record contains no response from the AJ regarding her denial of
complainant's motion for class certification. From the AJ's Bench
Decision, it is clear that the AJ denied the motion as untimely for it
was filed less than two weeks prior to complainant's scheduled hearing
date.<2>
The regulations provide that a complainant may move for class
certification at any reasonable point in the process when it becomes
apparent that there are class implications to the claim raised in an
individual complaint. 29 C.F.R. � 1614.204(b). The record indicates
that complainant requested a hearing prior to the commencement by the
agency of the investigation of the complaint at hand. The EEOC ordered
the agency to complete its investigation. Complainant received a copy
of the completed ROI on August 12, 2003. The record further indicates
that the parties were engaged in discovery during this same time.
Based on our review of the record, we find that complainant's motion
dated September 25, 2003 was reasonable.<3> Any delay was caused by
the agency's failure to investigate the complaint in a timely manner.
Upon receipt of the ROI and during discovery, complainant determined
that there were class implications to the claim raised. Hence, we find
that the AJ's dismissal of complainant's motion for class certification
for untimeliness was inappropriate.
The AJ also denied complainant's motion for class certification for
failure to comply with the requirement of adequacy of representation.
We find that the AJ's denial was premature. When complainant informed the
AJ of his intent to pursue the case as a class complaint, the AJ should
have advised him of his rights and responsibilities as the class agent.
Thus, we find that fairness and due process dictate that the decision
denying certification be vacated.
Further, complainant's individual complaint must be held in abeyance
pending the AJ's decision on class certification.<4> Accordingly,
we vacate the agency's FAD and remand the matter back to the AJ for
processing of complainant's class complaint.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we vacate the agency's final
order and remand the matter back for processing as a class complaint.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Atlanta
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the request and complaint file have been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on certification of the complaint in accordance
with the regulation set forth at 29 C.F.R. � 1614.204(d)(2) and the
agency shall issue a final action in accordance with the regulation set
forth at 29 C.F.R. � 1614.204(d)(7).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 8, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The term "move" in this context means that the complainant must make
his/her intention to process the complaint as a class action clear to the
investigator if the complaint is still in the investigation phase of the
process, to the Administrative Judge if the complaint is at the hearing
phase of the process, or to the agency if the investigation has been
completed and the complainant has not elected to proceed to a hearing. A
complainant may make his/her intention clear through a letter, a formal
motion, or any means that effectively informs the agency, investigator
(if the matter is within the investigation phase of the process), or
Administrative Judge of the complainant's intent to pursue a class action.
EEO MD-110, Chapter 8, Fn. 1.
2The AJ may dismiss a class complaint if the complainant unduly delayed
in moving for class certification. See 29 C.F.R. � 1614.204(b).
3Complainant indicated on appeal that he was never served notice on the
hearing date.
4The Commission notes that complainant filed another EEO complaint,
Agency No. 2002-0016-R4, alleging, among other things, discrimination
on the bases of race (African-American), sex (male) and age when he
was not selected for two temporary assignments announced by the agency
under Vacancy Notices AIR 01-11 and AIR 01-13. Complainant requested a
hearing before an AJ. In Hearing No. 110-A3-8034X-LL, the AJ issued a
decision finding discrimination but failed to address the non-selection
under Vacancy Notices AIR 01-11 and AIR 01-13. The agency appealed the
AJ's decision to the Commission. The AJ's finding of discrimination
was upheld by the Commission in EEOC Appeal No. 07A30128 (August 11,
2005), request for reconsideration denied, 05A60006 (October 27, 2005).
The claim regarding the non-selections for the two temporary assignments
was never addressed on the merits by the AJ or the Commission. As such,
we remand the claim regarding the non-selection under Vacancy Notices AIR
01-11 and AIR 01-13 for consolidation with complainant's claims regarding
the non-selection for the position of Program Management Officer,
GS-0340-13/14, advertised under Vacancy Announcement Number MPP-2001-59.