07A30082
12-05-2003
Teresa J. Davenport, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Office of the United States Attorney), Agency.
Teresa J. Davenport,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Office of the United States Attorney),
Agency.
Appeal No. 07A30082
Agency No. A-02-04-1037
Hearing No. 150-A2-8575X
DECISION
Following its March 13, 2003 final order, the agency filed a timely
appeal from the EEOC Administrative Judge's (AJ's) decision on class
certification. On appeal, the agency requests that the Commission
affirm its final order that accepted the AJ's decision to deny class
certification, but rejected the AJ's order that the agency notify
�identified members of the class� of the dismissal of the class complaint
and of the right to file individual complaints. For the reasons set
forth herein, the agency's final order is affirmed.
Complainant, the purported class agent, was an Assistant U.S. Attorney
(AUSA) working in the Major Crimes Section of the Office of the United
States Attorney (USAO) for the Southern District of Florida. Complainant
filed a formal EEO class complaint with the agency on or about January
25, 2002, claiming that the agency discriminated against female employees
when management officials in the Major Crimes Section of the USAO's Miami
Office assigned Magistrate Court duty and day duty to female AUSAs,
but not to male AUSAs, in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
The class complaint was forwarded to an AJ for a determination regarding
class certification. The AJ denied certification upon finding that the
complaint did not meet the standards for numerosity
or adequacy of representation. See 29 C.F.R. � 1614.204(a)(2)(i)
and(iv).<2> The AJ thereafter directed the agency to notify �identified
members of the class� that the class complaint had been dismissed and
that they have a right to file individual complaints. In its final
order, the agency accepted that part of the AJ's decision denying class
certification, but declined to implement the part requiring notification
to �identified members of the class.� The agency argues that the AJ's
order in this regard is devoid of legal support. Complainant presents
no arguments on appeal.
The Commission agrees with the agency and hereby holds that, where class
certification has been denied, there is no regulatory requirement that
an agency notify potential class members (whether �named� or not) of the
dismissal of the class complaint, or of their rights to file individual
complaints. EEOC regulations governing class procedures (29 C.F.R. �
1614.204 et seq.) contain no provision imposing such a duty on an agency;
nor is such a duty recognized in guidance elaborating on the regulations.
See EEOC Management Directive 110, November 9, 1999 at 8-6.
We note that the AJ's decision does not explain the basis for the
notification order. However, to the extent that it was based on our
decision in Mole v. Department of the Air Force, EEOC Request No. 05910578
(September 25, 1991), the Commission hereby clarifies that the �notice�
discussion in Mole purported to address the need to inform class members
of the fact that a class has been decertified. Notice of decertification
is a reasonable extension of the requirement in the regulations that
class members be given notice of the initial certification. See 29
C.F.R. � 1614.204(e). Mole is not applicable to the instant case because
a class was never certified.
To the extent that the AJ's order may have been based on decisions that
cite Mole for the proposition that notice to �named class members� is
required when class certification is denied, see e.g. Jones v. United
States Postal Service, 01965858 (June 18, 1997); Roach v. Department of
Veterans Affairs, 01933922 (October 15, 1993); and Evans v. Department
of Veterans Affairs, 01933933 (October 1, 1993), the Commission hereby
abrogates those decisions to that extent.
We note, finally, that our holding in this matter is consistent
with our decision in Evans v. Department of Veterans Affairs, EEOC
Request No. 05910438 (August 1, 1991), a case in which the referenced
notification issue was squarely presented to the Commission in a request
for reconsideration.
Accordingly, the agency's final order is AFFIRMED.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 5, 2003
__________________
Date
1The complaint contains other allegations of
discrimination on the bases of sex, age, race, and reprisal, but only the
claims regarding Magistrate Court duty and day duty, identified above,
are raised as a class claim of discrimination.
2The AJ also concluded that even if the class was expanded to include all
female AUSAs working in the Miami Office for the United States Attorney,
rather than just the females within the Major Crimes section as stated
in the class agent's formal complaint, the class complaint would have
then met the numerosity requirement, but consequently would not have
been able to meet the commonality and typicality requirements. See 29
C.F.R. � 1614.204(a)(2)(ii) and (iii).