01996360_r
11-20-2001
Phillip M. Hata, et al., Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Phillip M. Hata, et al., v. U.S. Department of Transportation
01996360
November 20, 2001
.
Phillip M. Hata, et al.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01996360
Agency No. DOT-6-99-6043
Hearing No. 370-99-2409X
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 6, 1999, dismissing complainant's proposed class
complaint on the grounds that it did not satisfy the prerequisites for
a class complaint. The Commission accepts the appeal in accordance with
29 C.F.R. � 1614.405.
According to the record, complainant first filed an individual complaint
(DOT-6-98-6170) against the agency, claiming discrimination on the grounds
of race, color, and national origin, concerning the agency's selection
process for higher level air traffic controller positions, claiming
that the area of selection denoted in the vacancy announcements for
these positions favors applications from white males.<1> Subsequently,
complainant contacted an EEO Counselor to pursue this claim as a
class agent on behalf of similarly situated individuals. When counseling
was unsuccessful, complainant filed the instant class action complaint.
Upon receiving the formal class complaint, the agency forwarded the
complaint file to the EEOC San Francisco District Office to assign
an Administrative Judge (AJ) for the purpose of determining whether
to certify the class. In a June 21, 1999 decision, the AJ recommended
that the complaint be dismissed. Specifically, the AJ found that the
complainant did not identify a representative for the class, other than
himself, and that the complainant, as a non-attorney, did not possess
the requisite knowledge, experience or legal skills to adequately
represent the interests of the class. Finding no error regarding this
determination, the agency adopted the AJ's recommendation to dismiss
the instant complaint.
On appeal, complainant argues that he is represented by an attorney in
his individual complaint, and that because the agency declared that the
complaints were identical, it should have realized that this attorney
was also representing the class in the class complaint. Complainant
asks that the attorney representing him in his individual complaint
be recognized as the class representative in the instant complaint,
and names another attorney as a potential class representative as well.
The agency did not submit a response to the appeal.
The purpose of class action complaints is to economically address claims
"common to [a] class as a whole ... turn[ing] on questions of law
applicable in the same manner to each member of the class." General
Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982)
(citations omitted). Under EEOC Regulations, a class complaint must
allege: (i) the class is so numerous that a consolidated complaint
concerning the individual claims of its members is impractical; (ii)
there are questions of fact common to the class; (iii) the class agent's
claims are typical of the claims of the class; and (iv) the agent of the
class, or, if represented, the representative, will fairly and adequately
protect the interests of the class. See 29 C.F.R. � 1614.204(a)(2).
A class complaint may be dismissed for failing to meet the above-listed
requirements. See id.
Under procedures set forth in our regulations, the AJ may require either
the complainant or the agency to submit additional information on the
issue of certification. See 29 C.F.R. �1614.204(d) (1). In this case,
it does not appear that the AJ requested additional information from
the parties regarding class representation, or on any of the other class
certification prerequisites. Moreover, we find that the AJ's decision
lacked an assessment of the complaint under all four certification
criteria. We find that a full assessment was necessary in this case
because if the three other certification criteria were found to be
satisfied, the AJ could provisionally certify the class and provide
complainant with the opportunity to obtain adequate representation
before proceeding to a hearing on the merits.
Accordingly, we VACATE the agency's decision, and REMAND the issue of
class certification to the agency to forward the record to San Francisco
District Office to request that an AJ undertake supplementation of the
record and render a determination on class certification based on the
evidence in the supplemented record, as set forth in the ORDER below.
ORDER
1. This matter is remanded to the agency to transfer the case to
the San Francisco District Office, and to request an assignment to
an AJ to undertake supplementation of the record on the issue of class
certification. After reviewing the record, the AJ shall order the parties
to submit all evidence deemed relevant to making a determination regarding
each of four criteria as set forth at 29 C.F.R. � 1614.204(a)(2).
The AJ shall then issue a new decision either certifying or dismissing
the class complaint.
2. After rendering the above decision, the AJ shall make a determination
as to whether complainant's individual complaint may be processed as a
separate complaint by the agency.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M701)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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
November 20, 2001
__________________
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
______________________________
1Complainant's individual complaint is not addressed in the agency's
decision, and a copy of this complaint is not in evidence before the
Commission. In his appeal, complainant declares that his individual
complaint is separate from the instant class action complaint, and
requests that his individual complaint be processed by the agency
prior to a determination on the class certification issue. However, we
advise complainant that at this point in the proceedings, his individual
complaint is subsumed in the instant class complaint, and any future
change in this disposition will be determined by the AJ on Remand.