01A23013_r
08-27-2002
Maximo Hernandez, Jr., et al., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Maximo Hernandez, Jr., et al. v. Department of the Air Force
01A23013
August 27, 2002
.
Maximo Hernandez, Jr., et al.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23013
Agency No. 8Y1M02006
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated April 26, 2002, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of national origin (Hispanic) and reprisal for prior EEO
activity when:
Complainant received letters from agency officials barring his entrance
to Kirtland Air Force Base dated April 1999 and August 31, 2000 that
are still enforced by current agency officials.
An agency EEO Counselor refused to hold a personal initial interview
and final interview with complainant.
The agency dismissed the complaint on numerous grounds pursuant to 29
C.F.R. � 1614.107(a).
On appeal, complainant argues that his complaint contains class action
allegations on behalf of all similarly situated persons in his protected
classes and that the agency erred in failing to forward his complaint
to the EEOC for the purpose of class certification by an Administrative
Judge (AJ). We agree. EEOC Regulation 29 C.F.R. � 1614.204(b) provides:
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.
Significantly, in its decision, the agency noted that "The 1 Feb
02 amendment describes [complainant's] claims as alleging class-wide
discrimination against Hispanics . . . ." The agency then reasons that
complainant's March 9th, 2002 amendment is intended by complainant
to discard his class claims in favor of his individual claims.
Complainant's statement on appeal clearly contradicts the agency's
conclusions regarding the intent behind complainant's March 9, 2002
amendment.
We find that complainant has alleged discrimination as an individual and
on behalf of a proposed class of persons and has moved for certification
of the class. Before the complaint can be dismissed, the agency is
obligated to refer the complaint to an EEOC AJ for a determination
on the issue of class certification. See 29 C.F.R. � 1614.204(d)(1).
The agency's decision to dismiss the complaint was therefore improper.
Accordingly, the agency's decision dismissing complainant's complaint
is VACATED. We REMAND the complaint to the agency for further processing
as directed in the Order herein.
ORDER
The agency shall submit a copy of the complaint file to the EEOC District
Office within 30 calendar days of the date this decision becomes final for
assignment to an EEOC Administrative Judge for acceptance or dismissal as
provided by 29 C.F.R. � 1614.204(d)(1), et seq. 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 EEOC District
Office. After receiving a decision from the EEOC Administrative Judge,
the agency shall take final action on the matter in accordance with 29
C.F.R. � 1614.204(d)(7).
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
August 27, 2002
__________________
Date