01A22353_r
06-05-2003
Rafael J. Heredia, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.
Rafael J. Heredia v. Smithsonian Institution
01A22353
June 5, 2003
.
Rafael J. Heredia,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A22353
Agency No. 99-02-100898
Hearing No. 100-99-7177P
DECISION
The record indicates that complainant, as class agent, filed a class
complaint, dated October 8, 1998, alleging discrimination on the bases
of race and national origin when he and putative class members were
treated unfairly in the areas of: (1) hiring practices; (2) promotions;
(3) discipline; (4) agency due process; and (5) societal exclusion of
Latinos. On October 23, 2001, an EEOC Administrative Judge (AJ) dismissed
complainant's individual complaint pursuant to 29 C.F.R. � 1614.107(a)(3),
for filing a civil action on the same matter. The AJ dismissed the class
complaint finding that complainant's class complaint does not meet the
prerequisites for certifying the class. The AJ found that complainant,
after filing a civil action in federal district court, no longer meets
the requirements of a class agent. The agency, on February 11, 2002,
issued a decision fully implementing the AJ's decision.
The regulations set forth at 29 C.F.R. � 1614.107(a)(3), allows for the
dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. The record reflects that,
by complaint form dated June 26, 1999, complainant filed a complaint in
U.S. District Court for the Southern District of New York, identified as
98Civ.5351(DAB)(RLE). We find that complainant's claims raised in the
civil action are the same as those claims raised in the class complaint.
Therefore, complainant's individual complaint is properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(3), for raising the same claim in
a civil action.
Under EEOC Regulations, a class complaint must allege: (i) the class
is so numerous that a consolidated complaint concerning the individual
claims of its member is impractical; (ii) there are questions of fact
common to the class; (iii) the class agency'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. 29 C.F.R. � 1614.204(a)(2). The agency may reject a class
complaint if any of these certification prerequisites are not met.
In this case, we find that since the class agent filed a civil action
on the same matters, the current class agent may no longer serve as
class agent. Without a class agent, the class can not be certified.
The Commission recognizes that there may be other putative members of
the class who may be willing to serve as the class agent. The Commission
notes that there is no evidence in the record to suggest that complainant
was instructed to find another class agent, with knowledge that failure
to do so would result in dismissal. Under the instant circumstances,
the Commission finds that the instant class agent should be given
the opportunity to substitute a new class agent. If no new class
agent volunteers to serve as class agent, then the agency may properly
re-dismiss the class complaint pursuant to 29 C.F.R. � 1614.204. If a
new class agent does volunteer to serve as class agent, then the agency
shall return the matter to the AJ for a new determination regarding
class certification and processing, as appropriate.
Accordingly, the agency's decision dismissing the individual complaint is
AFFIRMED. The agency's decision dismissing the class complaint is hereby
VACATED, and the class complaint is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency, within 15 calendar days of the date this decision becomes
final, shall provide complainant (the existing class agent) with the
opportunity to designate a new class agent who could meet the requirements
for class certification pursuant to 29 C.F.R. � 1614.204. If, within
30 calendar days of the date this decision becomes final, no new class
agent is designated, then the agency shall, within 60 calendar days of the
date this decision becomes final, re-dismiss the class complaint pursuant
to 29 C.F.R. � 1614.204. If a new class agent is designated within 30
calendar days of the date this decision becomes final, then the agency
shall, within 40 calendar days of the date this decision becomes final,
forward the case to the appropriate EEOC District Office for assignment
of an Administrative Judge for further processing in accordance with 29
C.F.R. � 1614.204(d).
A copy of the agency's letter providing complainant with the opportunity
to designate a new class agent and either a copy of the agency's new
decision or a copy of the notice forwarding the class complaint to the
appropriate EEOC District Office, must be sent to the Compliance Officer
as 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
June 5, 2003
__________________
Date