05a50926
12-02-2005
Request No. 05A50926
Douglas Powers, Suzan McCarthy et al. v. Department of Transportation
05A50926
December 2, 2005
.
Douglas Powers,
Suzan McCarthy, et al.
Class Agents,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A50926
Appeal No. 07A40067
Agency Nos. 4-99-4127 & 4-99-4106
Hearing Nos. 210-A2-6091X & 210-A2-6117
DENIAL
The Department of Transportation (agency) timely requested reconsideration
of the decision in Douglas Powers v. Department of Transportation,
EEOC Appeal No. 07A40067 (May 5, 2005). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The class agents alleged disparate treatment and disparate impact on
the bases of their gender (female/male) and age (over forty years old)
when they were denied coverage under the agency's Managers, Supervisors
and Staff Pay Plan (MSS), effective October 1, 1998 and the Movement
Rules issued on May 25, 1999.<1>
The agency argues that our previous decision erred in finding Class
Agent Powers' EEO contact timely. In our previous decision we upheld
the AJ's conclusion that on April 7, 1999, Class Agent Powers became
aware of the agency's decision not to include Headquarters and Regional
Office employees in its MSS pay plan at an all employees' meeting on
the subject decision. The agency asserts that it notified employees by
memorandum dated March 5, 1999, and by electronic message on March 8,
1999 that they would not be covered by the MSS pay plan thus requiring
that Class Agent Powers contact an EEO counselor by April 8, 1999.
In support of the previous holding, the Commission noted that while
the record contains a copy of the memorandum dated March 5, 1999, and
the electronic message dated March 8, 1999, there is no evidence that
either class agent received these messages. Moreover, the Commission
concluded that the AJ's finding that complainant received notification
of the agency's action on April 7, 1999, is supported by substantial
evidence in the record, notably the EEO counselor's report.
The agency argues in its request that our previous decision failed to
consider an EEO counselor's report that supports the finding that Class
Agent Behm became aware of the alleged act of discrimination by letter
dated March 7, 1999, as well as during the April 7, 1999 meeting with
the Administrator. We do not find that such evidence sufficiently
discredits the AJ's finding of fact as to the timing of Class Agent
Powers' knowledge of the alleged discrimination.
The agency also repeats arguments raised on appeal that the class
complaint fails to state a claim. In the appellate decision below,
we concluded that the agency's "failure to state a claim" argument was
previously reviewed by the Commission and the agency failed to cite
authority for permitting a second review. The agency's arguments,
herein, fail to support a different conclusion.
Lastly, in our previous decision, we affirmed the AJ's decision to
certify the class action. EEOC regulations define a class complaint
as one filed on behalf of a class by the agent of the class alleging
that: (i) the class is so numerous that a consolidated complaint of
the members of the class is impractical; (ii) there are questions of
fact common to the class; (iii) the claims of the agency are typical
of the claims of the class; and (iv) the agent of the class, or if
represented, the representative will fairly and adequately represent the
interests of the class. 29 C.F.R. �1614.204(a)(2). The agency asserts
essentially the same arguments with respect to class certification it
raised previously. We find nothing presented by the agency showing an
erroneous interpretation of material fact or law. As we noted previously,
while the two class complaints may not be entirely consistent with each
other, our regulations permit the AJ to define the class, subdivide the
class, or even decertify the class. 29 C.F.R. � 1614.204(d).
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request.<2> The decision in EEOC Appeal No. 07A40067 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency shall submit to the Hearings Unit of the Chicago District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall proceed
with the complaint in accordance with 29 C.F.R. � 1614.204 et. seq and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 2, 2005
__________________
Date
1The class requested to substitute class
agent Michele Behm (who filed a complaint in the Federal Court of Claims)
with Suzan McCarthy which the AJ granted.
2 We note that the agency raised additional arguments in its request
not specifically discussed herein, that also fail to meet the criteria
of 29 C.F.R. � 1614.405(b).