Artimese A. Epps, et al., Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 4, 2002
05A00627_r (E.E.O.C. Jan. 4, 2002)

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.