0520110045
01-05-2011
Ronald Jantz, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Ronald Jantz,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520110045
Appeal No. 0720090019
Agency No. HQ062518
DENIAL
The Agency timely requested reconsideration of the decision in Ronald Jantz v. Social Security Administration, EEOC Appeal No. 0720090019 (August 25, 2010). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our prior decision, the Commission reversed the Agency's final action rejecting the AJ's decision to certify the class of all current and former employees with targeted disabilities who, on or after August 22, 2005, have applied for promotions, made the best qualified list, and were denied promotion opportunities. The Class Agent was found to have met the four requirements of a class complaint. With respect to numerosity, the Commission determined that at least thirty-five employees self-identified as individuals with targeted disabilities who applied for and made the best qualified list, but were not selected for promotion. While the Agency asserted the challenged practice was not "facially discriminatory", and therefore the element of commonality was not established, the Commission was not persuaded. Instead, the Commission noted that the class agent proffered: significant evidence of an Agency-wide policy of excessive subjectivity in personnel decisions and the maintenance of an Agency culture of disability stereotyping; statistical evidence of disparities in selection based on disability; and anecdotal evidence of alleged disability-based discrimination. Moreover, the Class Agent's individual claims were found to be typical of the class. Lastly, the Commission noted that the "consortium of law firms" working with the Class Agent are sufficiently experienced and trained to pursue and protect the interests of the class members.
In its request for reconsideration, the Agency argues that the Commission's decision was "an erroneous departure from well-founded law". Specifically, the Agency contends that the Commission failed to apply the de novo standard of review and erroneously relied upon the AJ's flawed factual findings rather than the record before it on appeal. Additionally, the Class Agent was not held to the appropriate evidentiary burden. The Agency argues that the Class Agent was required to establish, by a preponderance of the evidence, a specific centralized policy or practice which tended to discriminate. Instead, the Agency asserts that the Class Agent's generalized claims of unfettered subjectivity was accepted to support a finding of commonality. The Agency asserts that by granting certification in this case, it "unfairly encumbers this Agency and the American taxpayers with the extraordinary burden of improperly and unnecessarily defending a national class action. . . ." If mere assertions are granted class certification, as here, "even the most baseless class claims will likely be certified", argues the Agency.
After reconsidering the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The Class Agent, as the party seeking certification of the class, carries the burden of proof, and it is his obligation to submit sufficient probative evidence to demonstrate satisfaction of the four regulatory criteria. Anderson, et al. v. Department of Defense, EEOC Appeal No. 01A41492 (October 18, 2005); Mastren, et al. v. USPS, EEOC Request No. 05930253 (October 17, 1993). As specifically described in our prior decision, adequate probative evidence was presented by the Class Agent to meet all the elements of certification. However, at the class certification stage, the Class Agent is not required to prove his case as the Agency seems to argue. The decision in EEOC Appeal No. 0720090019 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED to perform the following:
1. Notify potential class members of the accepted class claim within fifteen (15) calendar days of the date this decision becomes final, in accordance with 29 C.F.R. � 1614.204(e).
2. Forward a copy of the class complaint file and. a copy of the notice to the Hearings Unit of the Baltimore Field Office within thirty (30) calendar days of the date this decision becomes final.
The Agency must request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with 29 C.F.R. � 1614.204(f).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 5, 2011
__________________
Date
2
0520110045
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110045