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