01992719_r
10-19-2001
Gordon L. Pearigen, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Gordon L. Pearigen v. U.S. Department of Agriculture
01992719
October 19, 2001
.
Gordon L. Pearigen,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01992719
Agency No. 97-0448
Hearing No. 370-97-2686X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final action dated January 15, 1999, dismissing his individual and
class complaints of unlawful employment discrimination brought pursuant
to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., and Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Individually, and as class agent, complainant claimed discrimination
due to disparate treatment based on race, sex, age, and in reprisal
for prior protected activity when:
On November 20, 1996, the agency notified him that his position was
identified as �surplus� due to budget restrictions, and that actions
would be taken to transfer him to another position; and
On October 29, 1996, the agency offered a �Buy Out� program, but suspended
it on November 5, 1996, and ultimately canceled the program on December
20, 1996.
The agency transferred the complaint to an EEOC Administrative Judge (AJ)
for a decision on the issue of class certification. In his November 19,
1998 decision, the AJ determined that the agency action regarding the
identification of his position as �surplus� was merely a proposal to
take action, and that complainant failed to state a claim regarding
the suspension and subsequent cancellation of the �Buy Out� program.
Additionally, during the class certification process, the AJ found that
complainant raised an additional claim; namely, that similarly situated
employees of complainant's protected class were disparately and adversely
treated in terms of harassment, degrading job assignments, transfers and
demotions. Regarding this claim, the AJ denied class certification for
failing to meet the prerequisite elements of commonality and typicality.
Specifically, the AJ found that the claim was no more than an generalized
�Across-the-Board� claim, and that complainant also failed to show that
he had individually been subjected to any of these adverse actions.
In its final action, the agency adopted the AJ findings and conclusions
and dismissed the instant complaint. Complainant submits no statement
on appeal.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides, in relevant part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory.
Here, we concur with the AJ and the agency that the notice to complainant
regarding the designation of his position as �surplus,� without more, is
merely a proposal to reassign complainant. Therefore, because complainant
does not claim that he was actually reassigned as a result of this notice,
and because the record is otherwise devoid of any evidence that the agency
took any action to reassign complainant, we find that the agency properly
dismissed this claim on the grounds that it was merely a proposal to
take a personnel action. Accordingly, we AFFIRM the agency dismissal
of this claim.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim. An
agency shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age, disabling condition, or in reprisal for prior EEO activity. 29
C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049(April 21, 1994).
Regarding the claim relating to the �Buy Out� offer, we determine that
this claim was properly dismissed because complainant failed to show
how he was aggrieved when this offer was suspended and then canceled.
Review of the record indicates that during the period the program was
suspended, employees could continue to apply for the �buy out.� However,
the record fails to show that complainant applied for a �buy out� at
anytime during the applicable period. Therefore, while it appears that
complainant was eligible for a �buy out� offer, because there is no
evidence of an application from complainant, we find that he was not
rendered aggrieved when the agency ultimately canceled the program.
Accordingly, we find that this claim must be
dismissed for failure to state a claim, and we AFFIRM the agency's
dismissal of this claim for this reason.
Furthermore, we concur with the AJ and the agency that complainant,
as an individual, failed to provide any information to show that
was personally aggrieved by harassment, degrading job assignments,
transfers and/or demotions, as generally set forth in his March 26,
1997 supplemental statement to the AJ. Therefore, we find that to the
extent this may be construed as a separate claim, it must be dismissed
on the grounds of failure to state a claim. Accordingly, we AFFIRM the
agency's dismissal of this claim for this reason.
Finally, regarding the issue of class certification, we also concur with
the AJ and the agency that complainant, as the class agent, failed to
satisfy the requirements for commonality and typicality. Specifically,
regarding claims 1 and 2, the AJ determined that complainant presented
no evidence to demonstrate that either he or any class members were
aggrieved, and therefore did not establish commonality or typicality.
As to the third claim raised before the AJ, the AJ determined that the
alleged harms were too broad and too vague to identify a nexus with any
specific management policy or practice, so that commonality could not
be established. The AJ also found that complainant did not establish
typicality as to the third claim because he failed to show that he
himself was �targeted, or harassed, or demoted, or transferred or given
a degrading job assignment.� We find that the AJ correctly analyzed
the facts and used the applicable legal standard regarding the issue of
class certification, and properly denied class certification as to all
of the class complaint claims. See 29 C.F.R. � 1614.204 (d)(2).
In conclusion, we AFFIRM the dismissal of the individual complaint on the
grounds noted above, and we AFFIRM the dismissal of the class complaint on
these same grounds as well as the failure of the class agent to satisfy
the requirements for class certification.
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
October 19, 2001
__________________
Date