01972612
10-14-1998
Donald Hulsey, et al., Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Donald Hulsey, et al. v. Social Security Administration
01972612
October 14, 1998
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Donald Hulsey, et al., )
Appellant, )
)
v. ) Appeal No. 01972612
) Hearing No. 120-96-5187X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
Appellant filed a class complaint (the complaint at issue in this
decision) dated May 22, 1995. In the complaint appellant, as a class
agent, alleged that the class was discriminated against when the agency
failed to upgrade the Reconsideration Reviewer position from a GS-11 to
a GS-12 level. An EEOC Administrative Judge issued a decision dated
November 12, 1996 recommending that the instant class complaint be
dismissed because the instant class complaint states the same claim
that is pending before the Commission in Carton v. Social Security
Administration, EEOC Hearing No. 120-95-6776X. Because the agency failed
to accept, reject, or modify the administrative judge's recommendation
to dismiss the class complaint within 30 days of the agency's receipt
of the recommended decision and complaint file<1>, the administrative
judge's decision dismissing the class complaint is the agency's decision.
29 C.F.R. �1614.204(d)(7).
Appellant filed the instant appeal from the administrative judge's
decision. On appeal appellant argues that until a decision is issued
in Carton, appellant's complaint should remain active.
Subsequent to the filing of the instant appeal the agency sent appellant
a letter dated February 21, 1997 informing appellant that the final
decision of the administrative judge dismissing the class complaint was
now the final agency decision. The agency informed appellant that his
"complaint is being filed as an individual complaint of discrimination
effective December 12, 1996, and is hereby accepted for investigation."
The agency informed appellant that his individual allegation is the
same as the allegation pending certification before the Commission as
a class complaint (presumably referring to Carton). The agency cited
EEOC Management Directive 110, Chapter 7, Section III(B) (Oct. 22, 1992),
for the proposition that an individual complaint which comes within the
definition of the class allegation will be subsumed within the class
complaint. The agency, pursuant to �1614.606, consolidated appellant's
individual complaint with all of the classification complaints filed by
other Reconsideration Reviewers.
The Commission finds that the class complaint filed by the instant
class agent states the same claim that is now pending before the
Commission in Carton, et al. v. Social Security Administration, EEOC
Appeal No. 01975226. Therefore, we find that the administrative judge
properly dismissed the class complaint pursuant to �1614.204(d)(2)
and �1614.107(a).
"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). EEOC Management Directive
110, Chapter 7, Section III (B) provides:
An individual complaint which is filed before or after the class complaint
is filed, which comes within the definition of the class allegation(s),
will not be dismissed but will be subsumed within the class complaint.
If the class complaint is dismissed at the certification stage, the
individual complaint may still proceed. If the class proceeds to a
hearing, the individual claim may be used by the class representative
at the liability stage of the process, or it may be presented at the
remedy stage by the complainant.
The Commission finds that the agency properly informed appellant that the
complaint was being filed as an individual complaint. The Commission
finds that because the instant individual complaint comes within the
definition of the class allegations in Carton, the individual complaint
should be subsumed within the Carton class complaint. EEO MD-110, Ch. 7,
Sec. III(B). The agency's decision dismissing the class complaint 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. �1614.604(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. 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:
October 14, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency acknowledged in a letter dated February 21, 1997 that "the
recommended decision [by the administrative judge] in this case became
the final Agency decision."