07A20071
08-07-2002
Joe Sedillo, et al., Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Joe Sedillo, et al. v. Department of Agriculture
07A20071
August 7, 2002
.
Joe Sedillo, et al.,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 07A20071
Agency No. 990031
Hearing No. 100-99-7226P
DECISION
INTRODUCTION
Concurrent with the issuance of its February 20, 2002 final order
regarding the assigned Equal Employment Opportunity Commission
(Commission) Administrative Judge's (AJ) decision to certify the
above-captioned matter as a class action, the agency filed this timely
appeal of the AJ's decision to the Commission. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the reasons discussed below,
it is the decision of the Commission to MODIFY the AJ's decision,
VACATE the agency's final order, and REMAND the matter to the agency
for continued processing of the class complaint.
BACKGROUND
In the class complaint underlying the instant appeal, the class agents
allege that the agency discriminated against the class of Hispanic Forest
Service employees in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The complaint
alleges that the class members have been subjected to discrimination on
the basis of their national origin (Hispanic) in selections, promotions,
appraisals, awards, training programs, and by failing to remedy a
working environment hostile to Hispanic employees.<1> On January 7,
2002, after reviewing the briefs and other submissions of the parties,
including information presented in discovery ordered by the AJ against
the agency, the AJ issued a decision certifying the class.
In his decision, the AJ addressed how the class agent had satisfied
the requirements for class certification, as established at 29 C.F.R. �
1614.204(a)(2). The AJ found that the class agents had satisfied the
typicality requirement as to some but not all of their allegations, as
they had sufficiently shown that they shared the same interests and are
alleged to have suffered the same injury as the other members of the class
regarding their allegations of discriminatory selections, promotions,
and the presence of a hostile work environment. The AJ also found
that the class agents, who sought to represent a class of all Hispanic
employees of the Forest Service at all grade levels, were primarily
higher-graded employees (GS-13 through GS-15 levels), but included
one employee graded at the GS-6 level, and that this distribution was
sufficient to satisfy the typicality requirement as to these allegations.
The AJ further found, however, that the class agents had not satisfied
the typicality requirement as to the allegations of discriminatory
appraisals, awards, and training programs, as the class agents had not
raised these claims in their individual complaints of discrimination.
The AJ then narrowed the issue presented by the class complaint to be
�[w]hether the Forest Service, U.S. Department of Agriculture (agency),
discriminated against the class agents and other members of the class
on the basis of national origin (Hispanic) in selections, promotions,
and the existence of a hostile work environment.�
The AJ then turned to the requirement that the class complaint contain
questions of fact common to the class, and found that this requirement had
been met as well. The AJ found that the parties had agreed that there
was a nationwide total of over 1,600 Hispanic employees in the Forest
Service. The AJ further found that, based upon employee demographic
information provided by the agency for the years 1995 through 2000,
there was a statistical under-representation of Hispanic employees in
the Senior Executive Service (SES) and higher GS grade levels which was
significant enough to indicate a common policy or practice regarding
promotions and/or selections of Hispanic employees. The AJ also found
that the claim of the lead class agent sufficiently described a common
policy or practice of hostility to Hispanics in the workplace, and that
this claim was supported by the claims of the other class agents.
The AJ also found that, for reasons of class size and geographical
dispersion, the numerosity requirement had been satisfied. The AJ found
that, in addition to identifying the pool of over 1,600 potentially-harmed
Hispanic Forest Service employees, the lead class agent averred that
seventy-two named Hispanic Forest Service employees had previously filed
formal, or presented informal, complaints of hostile work environment
discrimination based upon their national origin.<2>
The AJ also found that the class agents had satisfied the adequacy of
representation requirement. In support of this finding, the AJ noted that
there was no indication in the record that the lead class agent has any
interest antagonistic to those of the class, and that his performance
thus far indicated that he would fairly and adequately protect the
interests of the class. The AJ made similar findings regarding the
class representative, but did not address the adequacy of the three
other designated class agents.
In its February 20, 2002 final order, the agency declined to implement
the AJ's certification decision. The agency first noted the filing
on October 30, 2001 of a similar class complaint as a civil action in
United States District Court. The agency provided that the civil action
addressed issues of discriminatory hiring, promotion, and harassment
against Hispanic employees of Region 5 of the Forest Service (which
includes the states of California and Hawaii, as well as Guam and the
Trust Territories of the Pacific Islands), and that, therefore, the
certified class action should be dismissed as it pertains to employees
of Region 5 of the Forest Service.
The agency also asserted that, as a result of removing Region 5 employees
from the class complaint, the class may not meet the certification
prerequisites of commonality, typicality, and numerosity. The agency
further noted that during the pendency of the AJ's class certification
determination, one of the four class agents requested an administrative
hearing in her individual EEO complaint, and another filed a civil
action in United States District Court on her individual EEO complaint.
The agency concluded that these events negatively affected the commonality
and typicality requirements.
Concurrent with the issuance of the agency's final order, the agency
filed with the Commission this appeal of the AJ's certification decision.
On appeal, the agency raises numerous challenges to the AJ's decision.
The class agents and representative similarly present several arguments
in favor of certification of the class complaint. We address these
arguments below.
ANALYSIS AND FINDINGS
Standard of Review
As an initial matter we note that, as this is an agency appeal from an
AJ's class complaint certification decision entered without a hearing,
see 29 C.F.R. � 1614.204(d)(7), we apply a de novo standard of review
and base our decision upon a preponderance of the evidence. 29 C.F.R. �
1614.405(a).
Class Certification
An individual seeking to gain certification of a class action is required
to sign and file a class complaint which identifies the policy or practice
adversely affecting the class as well as the specific action or matter
affecting the class agent. 29 C.F.R. � 1614.204(c)(1). The class
complaint must present allegations that the class is so numerous that
a consolidated complaint of the members of the class is impractical;
that there are questions of fact common to the class; that the claims of
the agent of the class are typical of the claims of the class; and that
the agent of the class, or, if represented, the representative, will
fairly and adequately protect the interests of the class. 29 C.F.R. �
1614.204(a)(2)(i)-(iv). The Commission's regulatory requirements for
class certification are patterned after Rule 23 of the Federal Rules
of Civil Procedure, and allow for an AJ to dismiss the complaint in its
entirety, or any portion thereof, should it fail to meet the certification
prerequisites provided in 29 C.F.R. � 1614.204(a)(2). Furthermore,
while the party seeking certification bears the burden of proof as to
each prerequisite, the Commission is mindful that class agents have
limited access to precertification discovery during the administrative
process, as opposed to the rules applicable to private sector employees,
Mastren v. United States Postal Serv., EEOC Request No. 05930253 (Oct. 27,
1993), and that it would be unjust to hold the class agents to the same
standard of proof in the administrative process as would be required of
a litigant proceeding under Rule 23 in federal district court.
As the agency has challenged the AJ's findings in favor of class
certification on each of the four prerequisites, we will address each
prerequisite in turn below.
Class Agents
As an initial matter, we note that, as recognized by the agency,
the composition of the group of class agents has diminished during
the pendency of the AJ's certification decision and this appeal.
The AJ recognized four named class members as class agents for the
certified class complaint. However, on appeal the agency has produced
unrebutted evidence that one class agent filed a civil action on her
individual discrimination claims in United States District Court,
depriving the Commission of jurisdiction over her complaint, see 29
C.F.R. � 1614.107(a)(3) (requiring agency to dismiss EEO complaint when,
prior to a hearing request, the complaint becomes the basis for a pending
action filed in United States District Court in which the complainant is
a party), and that another class agent requested a hearing before an EEOC
AJ and subsequently received a decision on the merits of her individual
discrimination complaint. Both of these class agents' actions, and
the subsequent effects of those actions, took place prior to the AJ's
issuance of his class certification decision. Accordingly, as it is a
requirement for all class agents that they be members of the class, 29
C.F.R. � 204(a)(3), they are no longer eligible to serve as class agents.
The remaining class agents argue on appeal that the loss of these class
agents is not fatal to certification of the class, as they have presented
the names of five additional class members who have claims which are
�entirely typical� of the class to serve as additional class agents.
However, the remaining class agents have not provided any detailed
information on the nature of these individuals' complaints, such as
copies of the EEO complaints filed by these individuals, affidavits
describing the allegations these individuals raised with the agency,
or any other evidence which would provide information as to the nature
of the individuals' claims. The only such information offered is the
lead class agent's statement that these class members each have �active
EEO complaints pending against the USDA Forest Service, having raised
one or more issues of non-selection, non-promotion, and/or hostile work
environment in his or her EEO complaint(s).� We find this proffer
insufficient to make the necessary showing that these individuals
are eligible to serve as class agents in this action�namely, that the
named individuals will fairly and adequately protect the interests of
the class. See 29 C.F.R. � 204(a)(2)(iv). Therefore, the two remaining
class agents from the AJ's initial class certification are at this time
the only class agents in this class action.
Commonality and Typicality
In addressing whether a class complaint warrants certification, it
is important to first resolve the requirements of commonality and
typicality in order to �determine the appropriate parameters and the
size of the membership of the resulting class.� Fusilier v. Department
of the Treasury, EEOC Appeal No. 01A14312 (Feb. 22, 2002) (citing Moten
v. Federal Energy Regulatory Comm'n, EEOC Request No. 05960233 (Apr. 8,
1997)). The purpose of the commonality and typicality requirements is to
ensure that class agents possess the same interests and suffer the same
injury as the members of the proposed class. General Tel. Co. of the
Southwest v. Falcon, 457 U.S. 147, 156-57 (1982). Factors the Commission
considers in determining whether commonality is present include whether
the practices at issue affect the whole class or only a few employees,
the degree of local autonomy or centralized administration involved,
and the uniformity of the membership of the class, in terms of the
likelihood that the members' treatment will involve common questions
of fact. Harris v. United States Postal Serv., EEOC Appeal No. 01994220
(Mar. 14, 2002) (quoting Mastren v. United States Postal Serv., EEOC
Request No. 05930253 (Oct. 27, 1993)). Typicality exists where the
class agent demonstrates some �nexus� with the claims of the class,
such as similarity in the conditions of employment and similarity in
the alleged discrimination affecting the agent and the class. Thompson
v. United States Postal Serv., EEOC Appeal No. 01A03195 (Mar. 22, 2001).
Furthermore, we note that the commonality and typicality requirements
might be satisfied if there was a showing of �significant proof that an
employer operated under a general policy of discrimination� and �the
discrimination manifested itself in hiring and promotion in the same
general fashion, such as through entirely subjective decisionmaking
processes.� Falcon, 457 U.S. at 159 n.15.
Our review of the record reveals that the class agents have not met their
burden of sufficiently establishing commonality as to the hostile work
environment claim. Of the two remaining class agents for purposes of
this class action, only the lead class agent has presented a hostile work
environment claim. The lead class agent alleges in his complaint that
the agency created a hostile work environment based upon his race, sex,
age, and national origin, but he does not provide any information as to
the nature of the hostile work environment to which he has allegedly
been subjected�he simply claims that the agency has discriminated
against him by the �creation of a hostile work environment,� without
further explanation.
The AJ found that the lead class agent's affidavit in support of
certification sufficiently described a common policy or practice of
hostility in the workplace as to Hispanic employees. Our review of this
affidavit, however, reveals that while the lead class agent alleges that
the �abysmal system of mismanagement of discrimination complaints� at
the agency, as well as an �overall atmosphere of retaliation/reprisal,�
has produced a �chilling effect� on the civil rights of Forest Service
employees, he has not presented these concerns in any of his several EEO
complaints which serve as the basis for his membership in the class and as
the basis for the class complaint. Nor does the record contain any detail
or explanation as to how the identified class members have been subjected
to a hostile work environment�the only information present is the lead
class agent's claim that fifty-four Hispanic Forest Service employees
have presented hostile work environment complaints to the agency between
1993 and 1999, and that another eleven Hispanic employees attempted
to present such claims after 1996, but were rejected by the agency.
The record lacks any factual description of the nature of any of these
complaints or claims, beyond the bare assertion that they are claims of
a �hostile work environment.�
Accordingly, it is impossible to determine whether or to what extent the
complained-of hostile work environment affects the class in terms of the
likelihood that the class members' treatment involves common questions
of fact. Therefore, as to the class claim of hostile work environment,
we conclude that the AJ incorrectly found that the commonality requirement
had been satisfied, and that certification of the class as to that claim
was unsupported by the record. We note, however, that the lead class
agent has stated on appeal that the specific information provided by
the agency regarding each named class member's hostile work environment
claim is available upon request. As information which may be sufficient
to establish commonality as to the hostile work environment claims of the
class agent and the class members is purportedly in the possession of the
lead class agent, it is the decision of the Commission to provisionally
certify the class as to the hostile work environment claim, and allow
the class agents a reasonable period of time to present any more detailed
information they may possess to the presiding AJ for a determination as
to whether the hostile work environment claim of the lead class agent
is typical of the hostile work environment claims of the class members
and whether there are factual issues common to these claims.
We do agree with the AJ that commonality has been sufficiently established
with regard to the claims of discriminatory selections and promotions.
In his determination that the commonality requirement had been met as to
these claims, the AJ noted that the parties had agreed that there were a
total of over 1,600 Hispanic employees nationwide, out of 29,500 permanent
Forest Service employees. The AJ also noted that information provided by
the agency for the years 1995 through 2000 showed that Hispanic employees
were represented in the following levels: three in the Senior Executive
Service (SES); nine at the GS-15 level; twenty-five at the GS-14 level,
forty-two at the GS-13 level; thirty at the GS-12 level; and fifty-six
at the GS-11 level. The AJ further noted that approximately one-fourth
of Forest Service employees with GS-level positions are in these higher
grade levels, but only ten percent of the agency's Hispanic employees
occupy such positions. From this evidence, the AJ found that the
statistical underrepresentation of Hispanics in the SES and higher GS
levels was sufficient to indicate a common policy or practice regarding
promotions and selections of Hispanic employees in the Forest Service.
In addition to this statistical evidence, the lead class agent asserts
in his affidavit that seventy-five to eighty percent of the fifty-four
claimants identified as alleging hostile work environment clams also
alleged they had suffered discriminatory nonselection and nonpromotion
based upon �being Hispanic.� The record also contains evidence of fifteen
additional nonselection claims, and twenty-two additional nonpromotion
claims. Despite the agency's contention that a finding of commonality is
precluded because the claims of the class agents and the class members
involve different regions and offices, different management officials,
and different geographic locations, we find that the class agents'
evidentiary showing in support of their contention that there exists
an overarching agency discriminatory policy or practice is sufficient
to establish questions of fact common to the class as to the claims
of discriminatory selections and promotions. See Moten v. Federal
Energy Regulatory Comm'n, EEOC Request No.05910504 (Dec. 30, 1991)
(allegation of discrimination manifest through excessively subjective
agencywide promotion and selection policies sufficient to support finding
of commonality).
The agency argues on appeal that the composition of the group of
class members will �necessarily� include a mixture of supervisory and
non-supervisory employees, as well as bargaining unit and management
employees, and therefore creates a class with members whose interests
conflict with each other to a level sufficient to preclude certification.
However, the agency has failed to present any evidence which would
indicate that such a conflict exists in the certified class. Accordingly,
we will not disturb the certified class on these grounds.<3>
As for the typicality requirement, the AJ found that the distribution
of grade levels among the class agents was sufficient to protect the
interests of the class, and that the class agents had therefore satisfied
typicality as to all grade levels represented in the class. However,
as discussed above, the composition of the group of class agents has
diminished, leaving only two class agents�one of whom occupies a position
at the GS-13 level, and another who recently retired from a GS-13 level
position. The agency contends that, as the remaining class agents seek
to represent a class composed of all Hispanic Forest Service employees
of all grade levels, including Hispanic SES level employees, the class
agents' claims are atypical of the class. The agency further argues
that the existence of �at least three different selection/promotion
procedures for different-graded positions� further militates against a
finding of typicality.
We disagree, however, that the class agents have failed to make a
showing of typicality sufficient to support certification of the class.
A class agent's different grade level does not necessarily render his or
her claims atypical of the class. Wagner v. Taylor, 836 F.2d 578, 591
(D.C. Cir. 1987). In applying the typicality requirement to a class
claim involving nonpromotion allegations which swept across several
grade levels, the court in Wagner held that:
[T]he court must consider whether [the class agent] suffered injury
from a specific discriminatory promotional practice of the employer in
the same manner that the members of the proposed class did, and whether
[the class agent] and the class members were injured in the same fashion
by a general policy of employment discrimination.
Wagner, 836 F.2d at 591.
The record in the instant appeal indicates that the class agents have
raised claims which allege being subjected to, and injured by, a general,
agencywide policy of unlawful discrimination against Hispanics in the
Forest Service's selection and promotion decisionmaking processes.
Furthermore, the class agents have provided demographic evidence
regarding the level of representation of Hispanic employees in higher
level positions to indicate that the harm alleged was not confined to a
single position, grade level, or geographic region of the Forest Service.
Accordingly, we find that the class agents have demonstrated a �nexus�
with the claims of the class sufficient to satisfy the typicality
requirement.
Numerosity
In addressing the numerosity requirement, the Commission has recognized
that there is no set minimum number of required class members, and that
each case must be evaluated based upon the particular circumstances
involved. Woods, et al. v. Department of Housing & Urban Dev.,
EEOC Appeal No. 01961033 (Feb. 13, 1998). The focus in determining
whether a proposed class is sufficiently numerous for certification
purposes is on the number of persons affected by the agency's alleged
unlawful discriminatory practices and who, therefore, may assert claims.
Moten v. Federal Energy Regulatory Comm'n, EEOC Appeal No. 05910504
(Dec. 30, 1991).
We agree with the AJ that the record contains sufficient evidence
to establish that the numerosity requirement has been satisfied.
As discussed previously, the lead class agent's evidentiary presentation
to the AJ included a table displaying the names of fifty-four Hispanic
Forest Service employees who, based upon documentation provided to
the class agents by the agency, allegedly filed formal, or presented
informal, discrimination complaints against the Forest Service between
1993 and 1999. The lead class agent indicated that at least seventy-five
to eighty percent of these complaints also alleged being subjected to
discrimination in selection and promotion decisions based upon �being
Hispanic.� The class agent also presented a list of Hispanic Forest
Service employees who had allegedly previously presented the agency with
discrimination claims based upon their national origin, but which the
agency refused to address. The agency has not disputed this assertion.
These claims included fifteen additional discrimination in selection
claimants, twenty-two additional discrimination in promotion claimants,
and eleven additional hostile work environment claimants.<4> Furthermore,
the parties agreed that there are over 1,600 Hispanic employees of
the Forest Service, all of which the class agents allege are potential
members of the class. We find this evidence sufficient in this case to
satisfy the numerosity requirement for class certification.
The agency contends that the existence of a nearly-identical class
action filed as a civil action in United States District Court on behalf
of Hispanic Region 5 Forest Service employees deprives the purported
class of sufficient numerosity. The agency argues that there are 507
Hispanic Region 5 Forest Service employees, and that the filing of the
civil action accordingly reduces the number of potential class members
in the instant class to roughly 1,100. We are unpersuaded that, even
if the agency's claim was proven to be true, the resultant reduction
of the number of potentially-affected class members to a total of
approximately 1,100 would deprive the class of sufficient numerosity.
We note that the agency has made no showing of how this civil action
actually, rather than speculatively, impacts the number of named class
members in the instant class action. Accordingly, we are unpersuaded
by the agency's argument.<5>
Adequacy of Representation
The final requirement for class certification is a showing by the class
agent or agents that the agent of the class, or, if represented, the
representative, will fairly and adequately protect the interests of
the class. 29 C.F.R. � 1614.204(a)(2)(iv). The class representative
should have no conflicts with the class and should either have sufficient
legal training and experience to pursue the claim or designate an
attorney with the requisite skills and experience. Kennedy v. National
Aeronautics & Space Admin., EEOC Appeal No. 01993626 (Apr. 26, 2001).
In the instant matter, the class agents have presented evidence that they
do not possess any interests which conflict with those of the class,
and that the class is to be represented in this action by an attorney
with extensive experience in employment discrimination law.
There has been no showing, however, that either the class agents or the
class representative have any experience in litigating a class action.
The Commission has previously held on numerous occasions that a lack
of experience in class action litigation can be fatal to meeting
the adequacy of representation requirement for class certification.
See Belser v. Department of the Army, EEOC Appeal No. 01A05565 (Dec. 6,
2001) (noting �the complex nature of EEO class litigation,� and holding
the proffer of attorneys who lack experience in class litigation
or EEO law insufficient to establish adequacy of representation);
Kennedy v. National Aeronautics & Space Admin., EEOC Appeal No. 01993626
(Apr. 26, 2001) (adequacy of representation not established when class
agents failed to demonstrate that they had any experience in actually
prosecuting class complaints, and stating that �[m]ost important, there
has been no showing that [the class agent] ever identified an attorney
with the necessary experience in class actions�); Woods v. Department of
Housing & Urban Dev., EEOC Appeal No. 01961033 (Feb. 13, 1998) (adequacy
of representation not established when there has been �no showing that
[the class agent/representative] has the necessary skills and experience,
nor the time and resources at his disposal, to conduct class litigation�).
The Commission has also recognized that where a class agent has
satisfied the commonality, typicality, and numerosity requirements for
class certification, the class may be conditionally certified for a
reasonable period of time, in order to permit the class agent time to
obtain qualified counsel. EEOC Management Directive 110, chapter 8, p.5
(Nov. 9, 1999). As the class agents have either fully or provisionally
satisfied these three certification requirements, we provisionally
certify the class to allow a reasonable time for either (1) the class
agents to secure additional representation qualified to conduct class
action litigation, or (2) the class representative to associate himself
with other counsel sufficiently experienced in class action litigation.
Conclusion
For the foregoing reasons, it is the decision of the Commission to
provisionally certify the class, with the class complaint defined
as follows:
Whether the Forest Service, United States Department of Agriculture,
discriminated against the class agents and other members of the class
on the basis of national origin (Hispanic) in selections, promotions,
and the existence of a hostile work environment.
Accordingly, the AJ's decision on class certification is MODIFIED, the
agency's final order is VACATED, and the matter is REMANDED to the agency
for continued processing of the provisionally certified class complaint,
as ordered below.
ORDER
The agency is ORDERED to comply with the above decision as follows:
The agency shall process the remanded class complaint in accordance with
29 C.F.R. � 1614.204(e) et seq. Within fifteen (15) calendar days of
the date this decision becomes final, the agency shall notify all class
members of the acceptance of the class complaint in accordance with the
requirements of 1614.204(e). Within thirty (30) calendar days of the date
this decision becomes final, the agency shall provide the Washington,
D.C. Field Office with a copy of the notice sent to the class members,
and shall request the appointment of an AJ, who shall undertake the
continued processing of the complaint pursuant to 1614.204(f) et seq.
The agency shall provide a copy of the notice of certification and request
for appointment of an AJ to the Compliance Officer, as referenced below.
Within 30 days of the assignment of an AJ by the Washington, D.C. Field
Office, the assigned AJ shall make any further determinations necessary
for full certification of the class on the issues of whether the class
agents have presented sufficient evidence to satisfy the commonality
and numerosity requirements contained in 29 C.F.R. � 1614.204(a)(2)
as to the class claim of the existence of a hostile work environment,
and on the adequacy of additional counsel retained by the class agents
to represent the class in this action. The parties shall submit evidence
in support of their position to the Washington, D.C. Field Office within
thirty (30) days of the date this decision becomes final. The parties
may not make an interlocutory appeal to the Commission on the decision
of the AJ as to these issues.
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, 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, 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. 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 (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
August 7, 2002
Date
1 These are the allegations as defined by the AJ in his March 10,
1999 order identifying the issues presented in the class complaint.
2 This evidence was presented in a table which referred to seventy-two
specific hostile work environment complaints filed by Hispanic employees
of the Forest Service between 1993 and 1999. However, the document only
lists fifty-four different-named complainants, and it appears from the
table that several of the complainants have filed more than one hostile
work environment complaint against the agency during the period covered
in the table. Accordingly, we disagree with the AJ that this evidence
established that seventy-two employees had filed formal, or presented
informal, hostile work environment complaints.
3 We note that, even after a class is certified, the AJ remains free to
modify the certification order or dismiss the class complaint in light
of subsequent developments. EEOC Management Directive 110, chapter 8,
p. 5 (Nov. 9, 1999). Therefore, should evidence come to light in support
of the agency's contentions, such evidence and argument may be presented
to the AJ during the processing of the class action.
4 The document contained information from a total of thirty-six
individuals, but several of these individuals' claims had already been
accounted for in the table of hostile work environment claims presented
by the lead class agent.
5 During the pendency of this appeal, the parties submitted a joint
motion requesting that the Commission hold its decision in this appeal
in abeyance, in order to allow for a redefinition of the instant class
should the Hispanic Region 5 Forest Service employees settle their
discrimination claims with the agency. The Commission declines to stay
the issuance of its decision in this matter, and reminds the parties
that they may present to the assigned AJ any new information impacting
the formulation of the class and request that the class be appropriately
redefined, as discussed in footnote 3 above.