01974349
07-20-2000
Rhonda L. Powell, et al., Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Rhonda L. Powell, et al., v. Department of the Navy
01974349
July 20, 2000
.
Rhonda L. Powell, et al.,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No.01974349
Agency No.96-00163-014C
Hearing No.240-96-5114X
DECISION
Complainant, as class agent, timely initiated an appeal from a final
agency decision (FAD) concerning an EEO class complaint alleging unlawful
employment discrimination on the bases of race (Black) and reprisal
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, we AFFIRM the FAD.
The record reveals that complainant, a GS-12 Electronics Engineer
and Chairperson, Black Employment Program, as class agent, sought EEO
counseling and subsequently filed a class complaint dated June 24, 1996 on
behalf of herself and other witnesses or potential witnesses in a racial
discrimination case filed against the agency. In the class complaint,
complainant alleged that:
members of the class have collectively suffered retaliation, harassment,
intimidation, duress, emotional duress, and mental anguish due to each
class member receiving an e-mail message from the agency's legal counsel
which threatened disciplinary action and use of annual leave if they
testified in a Federal District Court racial discrimination case against
the agency;
she was retaliated against prior to testifying at the trial when the
agency removed her as Chairperson of the Black Employment Program
Committee and subsequently removed her from the EEO advisory committee.
The agency referred the complaint to an EEOC Administrative Judge
(AJ) to determine whether it satisfied the requirements of 29
C.F.R. � 1614.204(a)(2) and was not otherwise subject to dismissal.
After reviewing the record, the AJ recommended that the agency dismiss
the complainant in its entirety because reprisal cannot form the basis
of a class complaint.
In its FAD, the agency adopted the conclusion of the AJ's recommended
decision, but also concluded that the complaint should be dismissed for
lack of numerosity, typicality and commonality. The FAD concluded that
the complaint was properly dismissed both individually and as a class.
It is from this FAD that complainant now appeals on behalf of the putative
class.
BACKGROUND
Several days before a trial in Federal District Court, the agency sent
an e-mail to potential witnesses. The plaintiff in the District
Court case was an employee of the agency who alleged that she was
discriminated against on the basis of her race. During the course of
the pretrial process, the plaintiff identified several agency employees
as potential witnesses. Citing Navy regulations at 32 C.F.R. � 725,
the e-mail warned these potential witnesses that they should not provide
testimony without prior authorization from the Secretary of the Navy
or his designee, that they risked disciplinary action for unauthorized
participation and that without a subpoena, they would have to use annual
leave to attend the trial. The e-mail instructed its recipients that
they should contact the Counsel's office immediately if they received
a subpoena or request to testify.
In addition to her class complainant, complainant argues that during
the pendency of the District Court case, the agency removed her from
membership on two committees namely, the Black Employment Program
Committee and the EEO Advisory Committee. The complainant alleges
that the agency removed her from these positions in retaliation for her
involvement in the District Court racial discrimination case. It appears
from the record that complainant testified as plaintiff's witness.
After a careful review of the record, the Commission finds, for the
reasons set forth below, that dismissal of the complaint was improper.
ANALYSIS AND FINDINGS
The AJ recommended denial of class certification based solely on the
ground that a reprisal allegation may not lawfully be the basis of a
class action. We disagree. There is case law holding that retaliation
claims may be the subject of class actions where the plaintiffs
establish a general practice of retaliation against employees who
oppose discriminatory practices or exercise rights protected under Title
VII. See Holsey v. Armour & Co., 743 F.2d 199, 216-17 (4th Cir. 1984),
cert. denied, 470 U.S. 1028 (1985). The Commission has held that reprisal
is an appropriate basis for a class complaint when there is a showing
that specific reprisal actions were taken against a group of people for
challenging agency policies, or where reprisal was routinely visited
on class members. Levitoff v. Department of Agriculture, EEOC Appeal
No. 01913685 (March 17, 1992), request to reopen denied, EEOC Request
No. 05920601 (September 10, 1992).
In its FAD, the agency adopted the AJ's recommended decision and
further concluded that the complaint should also be dismissed for lack of
numerosity, typicality and commonality. Our current regulations governing
class complaints are set forth at 64 Fed. Reg. 37,644, 37,658 (1999) (to
be codified as 29 C.F.R. � 1614.204(d)). Inasmuch as the AJ did not reach
the issues of numerosity, typicality and commonality, we remand these
issues to the AJ for development of the record and further processing.
ORDER (E0400)
The complaint is remanded to the Hearings Unit of the EEOC's Indianapolis
district field office. 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 complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.204.
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 (R0400)
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 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, Acting Director
Office of Federal Operations
July 20, 2000
Date
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.