01A32917
04-01-2004
Sam Wright, Jr., Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Sam Wright, Jr. v. Equal Employment Opportunity Commission
01A32917
April 1, 2004
.
Sam Wright, Jr.,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,
Agency.<1>
Appeal No. 01A32917
Agency No. 200200076
DECISION
On April 21, 2003, complainant, an employee of the Department of
Transportation, filed a timely appeal with this Commission from the
agency's final order dated April 7, 2003, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant filed fourteen separate class complaints, all of which are
dated September 13, 2003 and which the agency consolidated under agency
no. 200200076. For purposes of this decision, we will refer to the
consolidated complaints in the singular. In this complaint, complainant
alleges that the Commission fails to require federal agencies to comply
with 29 C.F.R. Part 1614 or the Commission's Management Directive 110;
fails to order disciplinary action against managers and supervisors who
discriminate; fails to enforce its orders; fails to use Administrative Law
Judges to issue initial decisions; fails to train Administrative Judges;
fails to comply with the Administrative Procedure Act; fails to maintain
a written policy designed to ensure that all of its workplaces are free
from discrimination; and finally, complainant alleges that the Commission
maintains a system that is designed to defeat the civil rights laws.
EEOC Regulation 29 C.F.R. � 1614.204(d)(1) requires an agency to forward a
class complaint, along with a copy of the counselor's report and any other
information pertaining to timeliness or other relevant circumstances, to
the Commission for assignment to an administrative judge or complaints
examiner. Consequently, although no EEO Counseling occurred in this
matter, the complaint was forwarded to a contract Administrative Judge.<2>
The Administrative Judge concluded that the complaint failed to meet the
regulatory requirements of 29 C.F.R. �� 1614.107(a)(1) and 1614.204(a)(2).
Pursuant to 29 C.F.R. � 1614.204(d)(2), the Administrative Judge dismissed
the complaint. In its final order, the agency adopted the decision of
the Administrative Judge.
On appeal, complainant argues that the agency's final order fails to
consider that the contract Administrative Judge to whom the complaint
was assigned had no authority to �adjudicate� the complaint because he
is not an �Administrative Judge� because the position of �Administrative
Judge� does not exist; because the contract Administrative Judge is not
employed by the Commission; and because the Commission has no authority
to contract with private attorneys to �adjudicate� EEO complaints.
Complainant provides no authority for his contentions. Finally,
complainant argues that:
Title VII expressly indicates that complaints of discrimination may
be brought pursuant to Executive Order 11478 and this executive order
provides that �this policy of equal opportunity applies to and must be
an integral part of every aspect of personnel policy and practice in
the employment, development, and advancement, and treatment of civilian
employees of the Federal Government.� Every aspect of the treatment of
civilian employees certainly covers the allegations dismissed by the EEOC.
(Emphasis in the original.)
Upon review, we discern no basis to disturb the Administrative Judge's
decision. We find that complainant did not identify any injury suffered
either individually or by the class as a whole as a result of any action
by the agency and that the class complaint did not meet the requirements
for commonality, typicality, numerosity or adequacy of representation
required for class certification. Accordingly, we affirm the agency's
final order, dismissing complainant's class and individual complaint
pursuant to 29 C.F.R. � 1614.204(d)(2).
Further, the Commission notes that complainant also filed a civil action
(Civil Action No. 03-0837) in the United States District Court for the
District of Columbia. The District Court accepted jurisdiction. In its
January 19, 2004 Memorandum Opinion, the District Court addressed the
question, as to whether Title VII provides for a cause of action against
the Commission, by a non-Commission employee or applicant for employment,
alleging dissatisfaction with the Commission's complaint procedures.
Because that question is also presented in the complaint at issue
herein, the Commission, on alternative grounds, dismisses the complaint.
See 29 C.F.R. � 1614.409. Under this circumstance, dismissal of the EEO
complaint is proper so as to prevent a complainant from simultaneously
pursuing both administrative and judicial remedies on the same matters,
wasting resources, creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of
the federal district court. See Stromgren v. Department of Veterans
Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of
Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,
EEOC Request No. 05880114 (October 25, 1988).
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
April 1, 2004
__________________
Date
1 In the instant matter, the
Equal Employment Opportunity Commission is both the respondent agency
and the adjudicatory authority. The Commission's adjudicatory function
is separate and independent from those offices charged with the in-house
processing and resolution of discrimination complaints. For the purposes
of this decision, the term �Commission� is used when referring to the
adjudicatory authority and the term �agency� is used when referring to
the respondent party in this action. The Chair has re-cused herself
from participation in this decision.
2 A contract Administrative Judge was used in this case to avoid any
conflict of interest that might arise as referenced in footnote 1.