0120121241
12-12-2012
Pamela Robinson1, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Pamela Robinson1,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121241
Hearing No. 430-2010-00210X
Agency No. ARARL09DEC05508
DECISION
Complainant filed an appeal with this Commission from the Agency's final order dated February 11, 2011. For the following reasons, the Commission DISMISSES the appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed at the Agency's Research Laboratory facility in Adelphi, Maryland, as an Administrative Support Assistant. In 2009, Complainant applied for a promotional position advertised by the Agency. Complainant was among those candidates not selected for the position.
On March 12, 2010, another Agency employee, Monica William, filed a class complaint, naming herself as Class Agent, alleging that the Agency subjected the class of employees defined as Administrative Support Assistants to discrimination on the bases of race (non-white) and reprisal for prior EEO activity regarding certain promotions.
On January 13, 2011, an Administrative Judge (AJ) from EEOC's Raleigh Area Office issued a decision dismissing Monica Williams et. al. v. Dep't. of the Army, EEOC Hearing No. 430-2010-00210X/Agency No. ARARL09DEC05508, for failing to meet the prerequisites for class certification. There were five purported class members. Complainant was one of those class members.
In her decision, the AJ provided notice to the Agency of its obligations under 29 C.F.R. � 1614.204(d)(7) to issue a final order within forty days of receipt of the AJ's decision to accept or dismiss the class complaint. On February 11, 2011, the Agency issued its final order, addressed to Class Agent Williams, fully implementing the AJ's dismissal of the class complaint for failure to meet the prerequisites for certification. In addition, the Agency's final order informed the class agent of the right to appeal the dismissal of the class complaint to the Equal Employment Opportunity Commission or to file a civil action.
The Commission has no record of an appeal filed by Class Agent Williams, and no evidence that another class member was substituted to act as a class agent in her stead. Accordingly, Complainant has no standing to appeal the AJ's certification decision in the class case. As to Complainant's individual complaint, we note that Complainant was informed on May 12, 2011, after the class case was not certified, that her individual complaint continued to be processed by the Agency.2
Consequently, this appeal is DISMISSED. See Ames v. Dep't . of Agric., EEOC Appeal No. 0120091338 (September 20, 2011).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 12. 2012
__________________
Date
1 We note that the appeal was initially erroneously docketed under the name of Monica Williams, the class agent in a related matter. However, a review of the documents within the record clearly shows that the appeal was filed by Complainant, not the class agent.
2 The Commission also notes that Complainant has another appeal, namely EEOC Appeal No. 0120120544, in which Complainant attempted to consolidate her individual complaint with other matters before another EEOC AJ. However, it is not clear that the Agency has taken final action on Complainant's individual claim that was related to thee class complaint.
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0120121241
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121241