01973698
05-13-1999
Ruth Turner, et al, )
Appellant, )
) Appeal No. 01973698
v. ) Agency No. DON-93-00264-001
) Hearing No.100-95-7790X
Richard J. Danzig, )
Secretary, )
U.S. Department of the Navy, )
Agency. )
)
DECISION
Appellant (class representative) timely initiated an appeal of a final
agency decision (FAD) concerning her class allegation that she was
discriminated against 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 appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
class and individual complaint.
BACKGROUND
The record reveals that on August 24, 1992, appellant and Person A
contacted an EEO counselor alleging, among other things, discrimination in
promotions and awards. On October 1, 1992, appellant, Person A, and two
other individuals filed a formal class complaint alleging discrimination
on the bases of race (Black), color, (black), sex (male and female),
reprisal and age. The class allegations included discriminatory
recruitment, promotions, job assignments, working conditions, benefits
and wages. On November 4, 1992, the agency issued a final decision to
each of the four members of the class. Therein, the agency found that
the class allegations were not raised with the EEO Counselor until the
final interview on the formal complaints, and thus referred the class
agents for EEO Counseling on the class claims. Furthermore, the agency
rejected the individual complaints as untimely.
On December 2, 1992, appellant timely appealed the agency's final decision
to the Office of Federal Operations. See Turner et al v. Dalton, EEOC
Request No. 01930730 (July 19, 1994). In that decision, OFO found it was
unable to determine whether appellant had received EEO Counseling on the
class complaint, and therefore found that the agency's decision to refer
appellant to EEO Counseling on the class complaint was proper. However,
OFO also found that the agency's rejection of appellant's individual
complaint was improper in that since it had been encompassed into the
class complaint, it should be held in abeyance pending the agency's
determination whether to accept or reject the class complaint. See id.
On August 2, 1994, appellant was referred to EEO counseling on the
class complaint. Thereafter, appellant sought and received extensions
in which to contact an EEO Counselor due to her health and other issues.
Appellant ultimately began her EEO Counseling on the class complaint
on April 6, 1995. During her EEO Counseling, appellant raised class
allegations of discrimination based on race, color, sex, age and reprisal,
involving claims of discriminatory promotions, awards and upgrades.
Appellant subsequently filed a formal complaint on May 25, 1995, which
was thereafter forwarded by the agency to an EEOC Administrative Judge
(AJ) as to whether to accept or dismiss the class complaint.
On December 2, 1996, the AJ issued a decision recommending that the
agency dismiss appellant's class complaint on the grounds that it did not
meet the requirements of 29 C.F.R. �1614.204(a). Specifically, that AJ
found that although appellant sought to represent a class of all black
employees who had been denied promotions, upgrades, and awards because of
their race, sex, age, disability and/or reprisal, appellant had failed
to provide any information about the estimated number of class members
in the purported class. The AJ found that the only evidence on record
was that as of July 1992, there were 22 civilian employees who worked in
the Standards Branch of the Education and Training Center, which is where
appellant worked in July 1992. However, appellant failed to provide any
information on the race, color, age, disability or prior EEO activity of
the members, and failed to include the geographic location of the members.
As such, even assuming that the putative class could be no more than 22
members, and that all members were Black and had a common and typical
interest, the AJ found that the number was insufficient to satisfy the
requirements of numerosity.
With respect to commonality and typicality, the AJ found that appellant,
despite the AJ's request, had failed to provide any information as to
what promotions, awards or upgrades the putative members were denied,
the qualifications for such promotions and upgrades, and which agency
officials were involved. Furthermore, the AJ found that appellant only
made broad and unsubstantiated assertions about the agency's alleged
discriminatory practices, and failed to provide requested information
as to whether there were questions of fact common to the proposed class
and whether appellant's claims were typical to the class.
Finally, the AJ found that appellant had failed to demonstrate adequacy
of representation in that she failed to supply any evidence demonstrating
adequate legal education or experience. Therefore, without an attorney
to represent her, appellant failed to establish that the class had
adequate representation. In sum, the AJ recommended that the agency
reject the class complaint.
On February 27, 1997, the agency issued a final decision dismissing
appellant's class complaint, as recommended by the AJ. Furthermore,
the agency dismissed appellant's class allegation of discrimination
on the basis of reprisal because it failed to state a claim, in that
reprisal is not included as an acceptable basis in a class complaint.
Finally, the agency noted that upon dismissal of a class complaint,
it was required to inform the class agent as to whether or not the
complaint will be processed as an individual complaint or dismissed
as an individual complaint. The agency defined appellant's individual
complaint as follows: whether appellant was discriminated against on the
bases of race (Black), color (black), sex (female), age (DOB 2/5/27),
physical handicap (heart), mental handicap (stress) and reprisal (prior
EEO activity) when: (1) on or around July 29, 1992, she was advised that
a GS-5 secretary within her division received a non-competitive promotion
to a GS-6 and appellant did not; (2) she had not received a performance
award for the rating period July 1, 1991, through May 31, 1992, for the
additional duties she was performing as a GS-12 Education Specialist; (3)
on July 29, 1992, she was threatened with demotion and loss of position;
and (4) on May 18, 1992, she was told to retire.
In its FAD, the agency dismissed appellant's allegation (1) in
that it failed to state a claim, since the promotion of a co-worker
does not change the terms and conditions of appellant's employment.
Furthermore, the agency found that appellant's remaining allegations
were not timely filed with an EEO Counselor. Specifically, the agency
found that allegation (2) occurred on June 16, 1992, which was 69 days
prior to EEO contact made on August 24, 1992. Allegation (3), which
occurred on July 29, 1992, was not presented to an EEO counselor until
April 11, 1995. Finally, allegation (4), which occurred on May 18, 1992,
occurred approximately 97 days prior to contacting an EEO counselor on
August 24, 1992.
It is from this decision that appellant now appeals. Appellant has
not filed any new contentions on appeal, rather she states that she �is
appealing the class action case.� In response to appellant's appeal, the
agency argues that appellant failed to establish any of the requirements
for certification of a class complaint, and that the remaining allegations
should be dismissed in accordance with its final decision.
ANALYSIS AND FINDINGS
After a careful review of the record, consisting of the EEO Counselor's
reports and appellant's formal EEO complaints, the submissions of the
parties to the AJ, the RD, and the FAD, the Commission finds that the AJ
properly concluded that appellant failed to meet the prerequisites for
class action certification under applicable regulations. Specifically,
the Commission determines that the AJ properly concluded that appellant
failed to satisfy the requirements of numerosity, adequate representation
of the class, commonality and typicality. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
finding that appellant failed to satisfy the requirements for class
certification.<1>
However, as the agency noted in its final decision, the dismissal of
a class complaint shall inform the agent either that the complaint is
being filed on that date as an individual complaint of discrimination
and will be processed under subpart A or that the complaint is also
dismissed as an individual complaint in accordance with �1614.107. 29
C.F.R. �1614.204(d)(7). In the present case, when the agency dismissed
the class complaint, it also dismissed appellant's individual allegations
of discrimination for failure to state a claim and for failing to
make timely EEO contact. We agree with the agency's final decision
with respect to allegations (2), (3) and (4), and AFFIRM the agency's
dismissal with respect to those allegations since appellant failed to
make timely EEO contact.
However, we do not agree with the agency's dismissal of allegation (1)
for failure to state a claim. The agency defined the issue as follows:
�on or around July 29, 1992, [appellant] was advised that a GS-5 secretary
within [her] division received a non-competitive promotion to a GS-6, and
[appellant] did not.� In essence, appellant has alleged a failure to be
promoted to GS-6. As such, we find that appellant's complaint states a
claim upon which relief can be granted, in that she clearly alleged harm
with respect to a term, condition, or privilege of her employment; i.e.,
that she was not provided a promotion to the GS-6 level. Therefore,
we REVERSE the agency's decision with respect to allegation (1) and
REMAND it in accordance with the ORDER below.
CONCLUSION
The agency's decision with respect to the dismissal of appellant's
class complaint is AFFIRMED; the agency's decision with respect to the
dismissal of appellant's allegations (2), (3), and (4) for failure to
make timely EEO contact is AFFIRMED. The agency's decision with respect
to the dismissal of allegation (1) is REVERSED and REMANDED to the agency
in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
5/13/99
DATE Carlton M. Hadden,
Acting Director
Office of Federal Operations1The agency is further
advised that it should notify the named class
members of the denial of class certification
and the right to file an individual complaint,
following exhaustion of all administrative rights
to appeal the rejection of the class complaint.
See Mole v. Department of the Air Force, EEOC
Request No. 05910578 (September 25, 1991);
Cortez v. Department of Agriculture, EEOC Request
No. 05940867 (October 31, 1995).