Rhonda L. Powell, et al., Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01974349 (E.E.O.C. Jul. 20, 2000)

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.