Fazal Rahman, et al., Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
01A24350_r (E.E.O.C. Oct. 30, 2003)

01A24350_r

10-30-2003

Fazal Rahman, et al., Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Fazal Rahman, et al. v. Department of Agriculture

01A24350

October 30, 2003

.

Fazal Rahman, et al.,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A24350

Agency Nos. 020077

010538

Hearing No. 350-A2-8074X

DECISION

On April 27, 2001, complainant filed a formal EEO complaint wherein he

claimed that he had been discriminated against on the bases of his race

(Asian), national origin (Pakistan), age (59), and in reprisal for his

previous EEO activity under Title VII and the Age Discrimination in

Employment Act when he was not selected for the positions of Associate

Deputy Administrator, ES-0341, in Beltsville, Maryland and Agricultural

Administrator, GS-401-15, in Albany, California. The agency accepted

the complaint for investigation.

On October 30, 2001, complainant filed a class complaint claiming

discrimination against all minorities with regard to non-selections, the

denial of upward mobility, and settlement agreements that were entered

into due to coercion and that contain a clause precluding an individual

from applying to the agency for future employment.

Subsequently, the agency referred the class complaint to an EEOC

Administrative Judge (AJ), and on May 23, 2002, the AJ issued a decision

dismissing the class complaint pursuant to 29 C.F.R. �1614.204(d)(7).

The AJ stated that the class complaint challenged the legality of

settlement agreements that contain a clause that precludes applications

for positions of future employment with the agency. The AJ found that

the issue should be resolved by the Office of Federal Operations (part

of the EEOC). The AJ did not define the class complaint as concerning

any other matters apart from the issue regarding the validity of the

settlement agreements. With regard to complainant's individual complaint,

the AJ considered the complaint to be claiming in part the same coercion

and illegal prohibition on future employment applications as that

articulated in the class complaint. The AJ dismissed this individual

claim and noted that challenges to the legality of a previously signed

settlement agreement should be made in an appeal to the Office of Federal

Operations pursuant to 29 C.F.R. �1614.504. The AJ ordered the agency

to resume processing the portion of complainant's individual complaint

that involves his claim of discriminatory non-selections. On September

18, 2002, the agency issued a final order wherein it stated that it

was fully implementing the AJ's decision. The agency stated that no

further processing of the class complaint or the individual complaint

would be undertaken.

On appeal, complainant contends that the AJ and the agency both failed

to address most of the issues that were raised in the class complaint.

Settlement Agreement Claims

With regard to the class complaint claims regarding a settlement

agreement, we find that these claims fail to state a claim of

employment discrimination and are properly dismissed pursuant to 29

C.F.R. �1614,107(a)(1). Issues concerning the validity of a settlement

agreement must be raised in accordance with 29 C.F.R. �1614.504 and do

not state independent claims of discrimination. However, putative class

members may individually challenge their respective settlement agreements

in accordance with the procedures set forth under 29 C.F.R. �1614.504

To the extent complainant claims in his individual complaint that he

entered into the settlement agreement due to agency coercion and that

the settlement agreement contains an illegal prohibition against future

employment applications, we find that these claims can not be raised

in the context of an individual complaint. Therefore, complainant

has failed to state a claim under 29 C.F.R. �1614.107(a)(1) and the

agency's dismissal of this claim from the individual complaint is proper.

The claim regarding the validity of the settlement agreement should

have been raised under the procedures set forth in 29 C.F.R. �1614.504.

However, in light of the fact that complainant entered into his settlement

agreement in 1991, the doctrine of laches is clearly applicable in

this matter. A complainant must act with due diligence in the pursuit

of his claim or the doctrine of laches may apply. We find that by

waiting nine years, complainant waited too long before raising the

claims that he was coerced into entering the settlement agreement and

that the settlement agreement contained an illegal clause prohibiting

applications for future employment with the agency. Therefore, we will

not invalidate the settlement agreement.

Non-settlement agreement claims

We observe that both the AJ and the agency failed to address the claims

in the class complaint that involve non-selections and a general denial

of upward mobility. Although complainant has not presented these

claims in a clear manner, it is evident that these are issues in the

class complaint and therefore they must be addressed. It is necessary,

however, that further clarification of the claims be undertaken pursuant

to 29 C.F.R. �1614.204(d)(4). Upon clarification, it may become clear

that there are other claims in the class complaint not mentioned in the

instant decision. Once clarification is accomplished, the AJ should then

determine whether the class fulfills the requisite elements, set forth

in 29 C.F.R. �1614.204(a)(2), of numerosity, commonality, typicality,

and adequacy of representation, and determine whether any portion of

the class complaint should be dismissed pursuant to 29 C.F.R. �1614.107.

Regarding the non-selection claims which the AJ ordered the agency to

resume processing, we note that the agency stated in its final order

that it was fully implementing the AJ's decision and also stated that

no further processing of the individual complaint would be undertaken.

The agency has informed the Commission that no decision has been issued

on the non-selection claims. Because the class complaint has not been

adjudicated, any individual claims that come within the definition of the

class complaint should be held in abeyance pending disposition of the

class complaint. Clearly, complainant's non-selection claims may come

within the definition of the class complaint. Therefore, the agency

should hold such individual claims in abeyance pending disposition of

the class complaint.

Therefore, apart from the settlement agreement claims, we shall vacate

the class complaint to the agency so that it may forward the file to

the AJ for further processing of the class complaint pursuant to 29

C.F.R. �1614.204. The agency shall hold any individual claims raised

by complainant in abeyance if such claims may come within the definition

of the class complaint.

The agency's decision refusing to invalidate a settlement agreement

entered into by complainant is AFFIRMED. The agency's decision dismissing

any class claims involving settlement agreements or individual claims

involving a settlement agreement is AFFIRMED. The agency's decision

dismissing the remainder of the class complaint is VACATED and the class

complaint is REMANDED to the agency for further processing pursuant to

the Order herein.

ORDER

Within 15 calendar days of the date that this decision becomes final,

the agency shall submit a copy of this decision, along with the complaint

file, to the Hearings Unit of the EEOC's Phoenix District Office. In its

letter of transmittal, the agency shall request that an Administrative

Judge be assigned to determine whether the class should be certified for

further processing pursuant to 29 C.F.R. �1614.204. The agency should

request, in its letter of transmittal to the EEOC District Office,

that the AJ seek clarification of the class complaint pursuant to

29 C.F.R. �1614.204(d)(4). After the AJ issues a decision, then the

agency shall issue a decision pursuant to 29 C.F.R. �1614.204(d)(7).

A copy of the transmittal notice shall be sent to the Compliance Officer

referenced herein.

Further, within 15 calendar days of the date this decision becomes

final, the agency shall notify complainant that his individual claims,

which come within the definition of the class complaint, will be held

in abeyance pending disposition of the class complaint. A copy of this

notification shall be sent to the Compliance Officer referenced herein.

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.

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 (T0900)

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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 30, 2003

__________________

Date