01A35142_r
09-28-2004
Rodolfo Perez, et al., Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Rodolfo Perez, et al. v. Department of Transportation
01A35142
September 28, 2004
.
Rodolfo Perez, et al.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A35142
Agency No. DOT 1-02-1047
Hearing No. 160-2003-08189X
DECISION
Complainant filed an individual complaint of discrimination dated May
2, 2002, alleging that he was subjected to discrimination based on his
national origin (Puerto Rico/Hispanic) when he was not selected for the
position of National Operations Manager (NOM). In a letter dated May
28, 2002, the agency accepted complainant's complaint for processing.
Upon completion of the investigation of his complaint, complainant
submitted a hearing request to the EEOC New York District Office,
requesting a hearing on his complaint.
The record reveals that on February 7, 2003, the New York District Office
reassigned the case to the EEOC Baltimore District Office. On February
12, 2003, the Administrative Judge (AJ) assigned to the case issued an
�Acknowledgment and Order� informing the parties of the procedures for
filing correspondence and motions, the right to seek discovery, and the
possibility of sanctions for failure to follow the AJ's Order.<1> The
AJ also issued a Supplemental Order dated February 12, 2003, providing
further instruction regarding discovery and the filing of motions to
amend or consolidate.
On February 26, 2003, prior to learning that the complaint had been
reassigned to the Baltimore District Office complainant sent a �Notice
of Intent to Process Complaint as Class Action� to the EEOC's New York
District Office. In this letter, complainant expressed his desire
�to pursue this complaint as a class action� seeking to represent �all
similarly-situated Hispanic employees and applicants for employment at
the [agency] who have been subjected to a pattern of discrimination on
the basis of national origin in being non-selected for promotion.�
In a March 18, 2003 letter, complainant contacted the AJ assigned to the
case and forwarded a copy of his February 26, 2003 �Notice of Intent
to Process Complaint as Class Action.� Complainant explained that
the �Notice� was originally sent to the New York District Office prior
to his receipt of the reassignment to the Baltimore/Richmond Office.
Complainant requested a telephonic status conference �for a timetable
for the conduct discovery on the class-wide issues and the filing of a
motion for class certification.�
In a March 21, 2003 letter, the agency acknowledged receipt of
complainant's request for a telephonic status conference. The agency
representative �also request[ed] a telephonic status conference to
discuss a timetable which would be amenable to all parties for filing
the necessary motions/oppositions on the issue of class certification.�
In a decision dated July 8, 2003, the AJ issued a decision denying
certification of the class complaint on the grounds complainant
failed to satisfy the commonality prerequisite pursuant to 29 C.F.R. �
1614.204(a)(2). The AJ noted that complainant seeks to represent proposed
class members seeking different jobs with different position descriptions
and duties, subject to different personnel systems, and seeking different
types of relief.
On August 21, 2003, complainant filed the present appeal regarding the
dismissal of the class complaint. Complainant states that following
his receipt of the Acknowledgment Order by the AJ, he faxed her a copy
of the February 26, 2003 �Notice of Intent to Process as Class Action�
originally sent to the New York District Office. Complainant states that
after two months passed without hearing from the AJ, he contacted her to
request a telephonic status conference. Complainant claims that he spoke
with the AJ on May 19, 2003, and during this call he advised her that
he would like to conduct discovery on the class issues and thereafter
file a motion for class certification. According to complainant,
the AJ informed him that she had received his �Notice of Intent to
Process Complaint as Class Action,� and stated that he need not comply
with the time lines set forth in the original Acknowledgment Order,
because it set forth deadlines for processing a non-class action claim.
Complainant contends that the AJ further stated that she would be sending
out a revised scheduling order and/or a set of instructions advising
the parties regarding how to proceed with the class claim and a schedule
for doing so. Complainant notes that instead of revising the scheduling
instructions, the AJ dismissed the complaint for failure to satisfy the
prerequisites for class certification.
On appeal, complainant argues that the AJ failed to abide by the
applicable regulations. Complainant states that the regulations provide
a complainant may move for class certification at any reasonable point in
the process when it becomes apparent that there are class implications.
Complainant claims that he has not yet moved for class certification but
only given notice to the AJ of his intent to move for class certification.
Complainant also states that the AJ failed to allow discovery for
the class complaint. Complainant states that he relied on the AJ's
assurances during the May 19, 2003 conversation that a new scheduling
order would be issued. Complainant states that it is unfair for the AJ
to render a decision prior to allowing complainant to conduct discovery
related to the class issues, to file a motion for class certification,
and to have that motion properly evaluated.
Subsequently, on August 25, 2003, the agency issued a final order,
fully implementing the AJ's decision denying certification of the class
complaint. The agency notified complainant that he may elect to resume
processing of his individual complaint.
The agency responded to complainant's appeal stating that the AJ's
dismissal of the class complaint for failure to meet the commonality
requirement for class certification was proper. The agency states that
complainant is a National Airspace Systems Specialist within the NY
TRACON, Airway Facilities under Air Traffic Services, one of the five
Lines of Business (LOBs) of the agency, seeking to make the next career
move to the position of NOM within the Airway Facilities directorate
in the Eastern Region. The agency notes that the agency has five
LOBs and eleven different staff offices involved in various functions.
The agency argues that the AJ was correct in finding that complainant was
seeking to represent class members seeking different jobs with different
position descriptions and duties. The agency further argues that the
class members were subject to different selection procedures.
Additionally, the agency rejects complainant's argument that the AJ did
not abide by the applicable regulations when she did not allow discovery,
did not establish a briefing schedule for the submission of a motion
for class certification, and did not allow him to file a motion in
support of his notice of intent to purse his claim as a class complaint.
The agency states that complainant made his intention clear that he
wished to pursue his individual complaint as a class complaint and that
he identified the class he wished to represent. The agency argues that
based on this information and the record before her, the AJ made a proper
determination that there was no need for additional information.
EEOC Regulations provide that a complainant may move for class
certification at any reasonable point in the process when it becomes
apparent that there are class implications to the claim raised in
an individual complaint. 29 C.F.R. � 1614.204(b). If a complainant
moves for class certification after completing the pre-complaint process
contained in � 1614.105, the agency or the AJ, as appropriate, must advise
the complainant of his/her rights and responsibilities as the class agent.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chapter 8, Section II(A) (November 9, 1999). EEO MD-110
further notes that a complainant must make his/her intention to process
the complaint as a class action clear to the AJ if the complaint is at
the hearing phase of the process. Id. A complainant may make his/her
intention clear through a letter, a formal motion, or any means that
effectively informs the AJ of the complainant's intent to purse a
class action. Id.
Upon review, we find that the AJ properly determined that complainant's
�Notice of Intent to Process as Class Action� dated February 26, 2003,
expressing his intention to pursue a class complaint, constituted a
motion for class certification. Once a complainant moves for class
certification after completing the pre-complaint process, where the case
is pending a hearing, the AJ must advise the complainant of his rights
and responsibilities as the class agent. Id. The record contains
no response from the AJ regarding complainant's motion for class
certification until her July 8, 2003 decision denying certification.
Because the AJ did not acknowledge complainant's individual complaint
was being processed as a class complaint and failed to advise him of his
rights and responsibilities as the class agent, we find that fairness
and due process dictates the decision denying certification be vacated.
Accordingly, the agency's decision denying certification is VACATED and
the matter is REMANDED to the agency for further processing in accordance
with the Order below.
ORDER
The agency is Ordered to take the following action:
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency is ordered to transfer the complaint file to the
EEOC's Baltimore District Office; and to request an assignment of an
AJ to undertake the processing of the class complaint pursuant to 29
C.F.R. � 1614.204 and the instant decision.
The agency shall provide written notification to the Compliance
Officer at the address set forth herein that the complaint file has
been transmitted to the EEOC District Office.
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 (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
September 28, 2004
__________________
Date
1Although assigned to the Baltimore District
Office, an AJ from the Richmond Area Office was assigned to process
the case.