01972947
05-18-1999
Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
W. Sherod Williams, Ph.D. v. Department of Veterans Affairs
01972947
May 18, 1999
W. Sherod Williams, Ph.D.,
Appellant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01972947
Agency No. 97-0813
Hearing No. 100-96-7442X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his class allegations that he was discriminated against on
the bases of race (African-American) and reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. Appellant alleged discrimination as the result of
a number of adverse agency actions, including: duty assignments; hiring;
demotions; promotions; terminations; reassignments; training; working
conditions; performance appraisals; disciplinary actions; and harassment.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001. For the reasons listed below, the FAD is AFFIRMED.
The issue on appeal is whether the agency properly dismissed appellant's
class complaint.
On November 9, 1995, appellant sought to file a class complaint
alleging that the agency discriminated against him and other employees
as referenced above. Subsequently, the agency forwarded the complaint
to the EEOC for a recommendation by an Administrative Judge (AJ) as
to whether to accept or dismiss the complaint. On December 26, 1996,
the AJ issued a decision (RD) 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). With respect to the numerosity
requirement, the AJ concluded that appellant failed to indicate the
specific individuals affected by, as well as how they were affected by,
the alleged discriminatory employment practices. Concerning commonality
and typicality, the AJ concluded that appellant's complaint failed to
raise questions of fact common to or issues that are typical of all
class members. Specifically, the allegations presented were too broad
and vague to establish a nexus between the discriminatory acts inflicted
on the appellant and those acts imposed upon the presumptive class.
The AJ also found that appellant, as agent of the class, and the class
representative failed to demonstrate that he could adequately represent
the interests of the class. On January 24, 1997, the agency issued a
FAD which adopted the RD and advised appellant that his complaint was
filed as an "individual complaint" of discrimination as of that date.
It is from this decision that appellant now appeals. No contentions
were submitted on appeal.
After a careful review of the entire record, the Commission finds that
the AJ's RD presented the relevant facts, and properly analyzed the
appropriate regulations, policies and laws. The Commission discerns no
basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
5/18/99
______________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations