05A00627_r
01-04-2002
Artimese A. Epps, et al., Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Artimese A. Epps, et al. v. Department of Agriculture
05A00627
January 4, 2002
.
Artimese A. Epps, et al.,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A00627
Appeal No. 01984006
Agency No. 960326
Hearing No. 270-96-9129X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Artimese
A. Epps, et al. v. Department of Agriculture, EEOC Appeal No. 01984006
(March 20, 2000). EEOC Regulations provide that the Commission may,
in its discretion, 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 the initial appeal, the Commission certified a class complaint
consisting of:
All current and former Black employees of the NFC [National Finance
Center] who have applied for but not received promotions; the class
also may include any current or former Black NFC employee who did not
apply for a promotion because of the perception that they would not be
promoted because of their race, but otherwise would have applied.
On request for reconsideration, the agency argues that certification
was improper because responsibility for recommending and approving
promotions was �widely dispersed.� The agency also contends that the
different positions, in different occupation series, are too disparate
to be considered together as part of a class complaint. The agency also
contends that the class is related to a separate class claim, Spencer
v. Department of Agriculture, EEOC Hearing No. 100-99-7910P. Finally, the
agency claims that the Administrative Judge (AJ) made various procedural
errors concerning time limitations, including ex parte communication
with complainant granting him an extension to file additional information.
The agency provides an affidavit from a Personnel Officer concerning
the �dispersed� procedure and considerations for promotion decisions
at the NFC. Complainant, on the other hand, has argued that promotion
inequity stems from policies and practices of the Human Resources Office.
The Commission finds that this dispute is best addressed on the merits
(where credibility determinations are more properly addressed), not in
the present circumstance. As noted in our initial appeal decision,
complainant has presented enough information to satisfy class action
certification for the denial of promotions.
In the �related� case, Spencer v. Department of Agriculture, pending
appeal in EEOC Appeal No. 01A05280, the complainant seeks certification
for an agency-wide class of African-Americans subjected to myriad
employment practices, including non-promotion.<1> The mere existence of
this proposed class complaint is not sufficient grounds to dismiss the
instant, already certified, class complaint. Cf. Hannigan v. United
States Postal Service, EEOC Appeal No. 01985004 (November 18, 1999)
(refusing to dismiss an individual complaint because it would be subsumed
into a class action pending in District Court, if the class is certified).
Further, the Commission finds no reason to grant the agency's request
based on the completely unsupported claim that the AJ engaged in improper
ex-parte communication. The Commission notes, however, that although
complainant had competent counsel during the certification stage of his
complaint, he does not appear to be represented by an attorney at present.
The lack of adequate representation, by itself, does not require the
Commission to deny certification. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch.8 - pg.1
(November 9, 1999). However, the AJ may revisit the issue after allowing
complainant a reasonable period of time to secure representation.
See Hines v. Department of the Air Force, EEOC Request No. 05940917
(January 29, 1996); cf. 29 C.F.R. � 1614.204(d) (AJ may redefine class,
subdivide it, or recommend dismissal if it is discovered that there is
no longer a basis to proceed as a class complaint).
CONCLUSION
After a review of the agency's request for reconsideration, 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 decision in EEOC
Appeal No. 01984006 remains the Commission's final decision; its order
is reprinted below. There is no further right of administrative appeal
on the decision of the Commission on this request for reconsideration.
ORDER
The agency is ordered to perform the following:
Process all individual complaints from the class agents that do not
concern the denial of promotion in accordance with 29 C.F.R. � 1614.108.
Within forty-five days of the date this decision becomes final, the
agency shall issue a notice of processing of such claims as individual
complaints.
Notify potential class members of the accepted class claim within
fifteen days of the date this decision becomes final in accordance with
29 C.F.R. � 1614.204(e).
Forward a copy of the class complaint file and a copy of the notice to
the appropriate EEOC District Office within thirty days of the date this
decision becomes final. The agency must request that an administrative
judge be appointed to conduct discovery for the certified class claim
in accordance with 29 C.F.R. � 1614.204(f).
Send a copy of all notices and letters ordered above to the Compliance
Officer as provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (Q0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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 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 (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 4, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The AJ denied certification, the agency adopted the AJ's decision,
and complainant appealed to this Commission.