01996146_r
01-09-2002
Robert L. Morman, et al., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Robert L. Morman, et al., v. Department of the Air Force
01996146
January 9, 2002
.
Robert L. Morman, et al.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01996146
Agency No. ELOR-96-011
Hearing No. 380-96-8169X
DECISION
Complainant, as class agent, filed a timely appeal with this Commission
from a final agency decision dated June 30, 1999, dismissing his class
action complaint alleging 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 Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
The record reflects that complainant is an employee of the agency who
actively serves as an EEO representative in numerous EEO complaints.
Complainant contacted an EEO Counselor on April 16, 1996, and subsequently
filed a formal class complaint on April 22, 1996, claiming discrimination
on the bases of race, color, religion, sex, national origin, age,
disability, and in reprisal for prior protected activity (all bases
unspecified). After obtaining additional information from complainant,
the agency framed the complaint as consisting of the following matters:
The agency changed the procedure for filing EEO complaints without notice;
The agency implemented changes to 29 C.F.R. � 1614.605(a)(b)(c) without
authority, notice and consideration of impact and implementation;<1>
The agency retaliated against complainant [by denying his requests for
official time to act as an EEO representative] because of the number of
EEO complaints he represented;
The agency denied complainant time to represent EEO complaints as set
forth by law, rules and regulations;
The agency attempted to dissuade people from filing complaints;
The agency disallowed EEO complaint representation;
The agency created a conflict of interest within the EEO office by
assignment of counselors who are manipulated;
The agency denied the recognition of a collective bargaining agreement
by defining with prejudice the role of Union Representation in processing
EEO complaints; and
This interference deflects the inquiries of promotion, performance rating
and uneven punishment for like or similar infractions of policies.
The agency transferred the case to an EEOC Administrative Judge (AJ)
to make a decision regarding class certification.
In a May 21, 1999 decision, the AJ construed the instant complaint
as claiming that the agency improperly disqualified complainant
from representing EEO complainants and that the agency continuously
misinterpreted the Commission's regulations on EEO representation. The AJ
also determined that the class complaint did not define a �class,� but
found that complainant claimed that the agency's improper limitation on
EEO representation affects �all federal workers alleging discrimination.�
Based on this framing of the complaint, the AJ found that the Commission's
decision in two prior companion cases rendered the instant complaint
moot, precluding the need for a determination on class certification.
Specifically, the AJ found that in Morman v. Department of the Air
Force, EEOC Appeal No. 01963870 (March 17, 1997) (hereinafter referred
to as �Morman�) and Binion v. Department of the Air Force, EEOC Appeal
No. 01964629 (March 17, 1997), (hereinafter referred to as �Binion�),<2>
the Commission held that the agency improperly disqualified complainant
as an EEO representative and remanded both cases with the instructions to
the agency to meet with complainant to determine a reasonable amount of
official time to act as an EEO representative in future cases. The AJ
then concluded that the agency should dismiss the class complaint.
In its final decision, the agency adopted the AJ's determination
dismissing the complaint under 29 C.F.R. � 1614.107(a). The agency
additionally determined that none of the criteria necessary for
certification of a class action were satisfied. The agency dismissed
the class complaint, and forwarded complainant's individual complaint
to the EEO office for further processing as appropriate.
Complainant now appeals this determination. In response, the agency
repeats the arguments as set forth in its decision, and additionally
avers that complainant has no standing to bring a complaint on behalf of
those who were purportedly denied the benefit of his EEO representation,
or otherwise disadvantaged by the agency's purportedly improper
administration of the EEO process.
Dismissal of the class complaint on the grounds provided in 29 C.F.R. �
1614.107(a).
Initially, complainant must demonstrate that the class action complaint
constitutes an actionable claim not subject to dismissal on any grounds
provided in 29 C.F.R. � 1614.107(a).
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a
complaint when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the factfinder
must ascertain whether: (1) it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). Moreover, the Commission has long
held that where a complainant has requested compensatory damages, the
potential for said damages means that the matter cannot be dismissed as
moot until the agency has at least given the complainant the opportunity
to present evidence supporting his claim for compensatory damages and
then has either awarded the damages or has shown that the complainant was
not entitled to them. Hofmann v. Department of the Navy, EEOC Request
No. 05970962 (October 28, 1999).
Based on our de novo review of this case, we find that the AJ improperly
determined that the instant complaint must be dismissed on the grounds
that it was rendered moot by Morman and Binion. Specifically, we find
that the record contains no evidence describing the agency's compliance
with the Commission's remand instructions in Morman or Binion sufficient
to conclude that there is �no reasonable expectation that the alleged
violation will recur� or that this remedy �irrevocably eradicated the
effects of the alleged discrimination.� On the contrary, in footnote
1 of his decision, the AJ indicates that complainant filed several
subsequent complaints in which he again claimed that the agency improperly
precluded him from acting as an EEO representative. We also find that
complainant claimed compensatory damages in the instant complaint.
Under these circumstances, we conclude that the instant complaint is not
moot, and that the AJ improperly determined that it should be dismissed
on these grounds
Nonetheless, we find that the complaint, as framed by the AJ, must be
dismissed on the grounds that it states the same claim that is pending
before or has been decided by the agency or Commission. See 29 C.F.R. �
1614.107(a)(1). Specifically, we find that claims 2, 3, 4 and 6, as
set forth above, concern complainant's claim that the agency improperly
denied his request(s) for official time to act as an EEO representative,
and that the Commission previously addressed this same matter in Morman
and Binion. In this regard, we note that if the agency failed to fully
comply with the remand instructions in these cases, complainant's recourse
was to file an enforcement action with the Commission, not a class action
complaint raising this same claim. Therefore, for these reasons, we
AFFIRM the agency's dismissal of claims 2, 3, 4 and 6 pursuant to 29
C.F.R. � 1614.107(a).
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency
shall dismiss an entire complaint that alleges dissatisfaction
with the processing of a previously filed complaint. See Trujillo
v. Department of the Air Force, EEOC Request No. 05950177 (June 13,
1996). The Commission's Management Directive further specifies that if
a complainant is dissatisfied with the processing of his EEO complaint,
he must bring his allegations regarding the processing of this complaint
to the appropriate agency officials. See EEO Management Directive 110,
(MD-110) p.5-25 (November 9, 1999).
Regarding claims 1, 5, 7, 8, and 9, as set forth above, we find that
complainant claims that the agency improperly administers the EEO process
to the detriment of himself as a complainant, as well as to the detriment
of those complainants he represents or even possibly to the detriment of
all federal employees. Accordingly, we find that these claims must be
dismissed because they constitute �spin off� complaints under 29 C.F.R. �
1614.107(a)(8). Moreover, to the extent that any or all of the claims set
forth above may be additionally construed as a claim that the agency's
purported improper administration of the EEO process results in federal
employees being deprived of complainant's personal representation,
or that of other EEO representatives, we find that complainant has
no standing regarding this matter. Instead, it is well settled that
claims of improper denial or limitation of EEO representation lie with
the complainant, not the EEO representative. See Ramage v. USPS, EEOC
Request No. 05A10053 (March 23, 2001). Therefore, we find that this
claim must be dismissed for failure to state a claim under 29 C.F.R. �
1614.107(a)(1). Accordingly, for the reasons stated above, we AFFIRM
the agency's dismissal of claims 1, 5, 7, 8, and 9.
Therefore, we find that the agency properly dismissed the instant
complaint pursuant to 29 C.F.R. � 1614.107(a), and we AFFIRM that
determination.
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 (S0900)
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. 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 (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
January 9, 2002
__________________
Date
1According to the EEO Counselor's report, complainant claims that the
Union was required to review any changes to his work schedule, and that
the agency failed to confer with the Union when it disqualified him to
act as an EEO representative based on the purported interference with
his work schedule.
2 Morman is complainant's individual complaint, and Binion was filed by
a complainant whom the agency would not allow complainant to represent.
Both complaints were filed in March 1996, one month prior to the filing
of the instant complaint.