Rhonda L. Powell, et al., v. Department of the Navy 01974349 July 20, 2000 . Rhonda L. Powell, et al., Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency. Appeal No.01974349 Agency No.96-00163-014C Hearing No.240-96-5114X DECISION Complainant, as class agent, timely initiated an appeal from a final agency decision (FAD) concerning an EEO class complaint alleging unlawful employment discrimination on the bases of race (Black) and reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. § 1614.405). For the following reasons, we AFFIRM the FAD. The record reveals that complainant, a GS-12 Electronics Engineer and Chairperson, Black Employment Program, as class agent, sought EEO counseling and subsequently filed a class complaint dated June 24, 1996 on behalf of herself and other witnesses or potential witnesses in a racial discrimination case filed against the agency. In the class complaint, complainant alleged that: members of the class have collectively suffered retaliation, harassment, intimidation, duress, emotional duress, and mental anguish due to each class member receiving an e-mail message from the agency's legal counsel which threatened disciplinary action and use of annual leave if they testified in a Federal District Court racial discrimination case against the agency; she was retaliated against prior to testifying at the trial when the agency removed her as Chairperson of the Black Employment Program Committee and subsequently removed her from the EEO advisory committee. The agency referred the complaint to an EEOC Administrative Judge (AJ) to determine whether it satisfied the requirements of 29 C.F.R. § 1614.204(a)(2) and was not otherwise subject to dismissal. After reviewing the record, the AJ recommended that the agency dismiss the complainant in its entirety because reprisal cannot form the basis of a class complaint. In its FAD, the agency adopted the conclusion of the AJ's recommended decision, but also concluded that the complaint should be dismissed for lack of numerosity, typicality and commonality. The FAD concluded that the complaint was properly dismissed both individually and as a class. It is from this FAD that complainant now appeals on behalf of the putative class. BACKGROUND Several days before a trial in Federal District Court, the agency sent an e-mail to potential witnesses. The plaintiff in the District Court case was an employee of the agency who alleged that she was discriminated against on the basis of her race. During the course of the pretrial process, the plaintiff identified several agency employees as potential witnesses. Citing Navy regulations at 32 C.F.R. § 725, the e-mail warned these potential witnesses that they should not provide testimony without prior authorization from the Secretary of the Navy or his designee, that they risked disciplinary action for unauthorized participation and that without a subpoena, they would have to use annual leave to attend the trial. The e-mail instructed its recipients that they should contact the Counsel's office immediately if they received a subpoena or request to testify. In addition to her class complainant, complainant argues that during the pendency of the District Court case, the agency removed her from membership on two committees namely, the Black Employment Program Committee and the EEO Advisory Committee. The complainant alleges that the agency removed her from these positions in retaliation for her involvement in the District Court racial discrimination case. It appears from the record that complainant testified as plaintiff's witness. After a careful review of the record, the Commission finds, for the reasons set forth below, that dismissal of the complaint was improper. ANALYSIS AND FINDINGS The AJ recommended denial of class certification based solely on the ground that a reprisal allegation may not lawfully be the basis of a class action. We disagree. There is case law holding that retaliation claims may be the subject of class actions where the plaintiffs establish a general practice of retaliation against employees who oppose discriminatory practices or exercise rights protected under Title VII. See Holsey v. Armour & Co., 743 F.2d 199, 216-17 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). The Commission has held that reprisal is an appropriate basis for a class complaint when there is a showing that specific reprisal actions were taken against a group of people for challenging agency policies, or where reprisal was routinely visited on class members. Levitoff v. Department of Agriculture, EEOC Appeal No. 01913685 (March 17, 1992), request to reopen denied, EEOC Request No. 05920601 (September 10, 1992). In its FAD, the agency adopted the AJ's recommended decision and further concluded that the complaint should also be dismissed for lack of numerosity, typicality and commonality. Our current regulations governing class complaints are set forth at 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified as 29 C.F.R. § 1614.204(d)). Inasmuch as the AJ did not reach the issues of numerosity, typicality and commonality, we remand these issues to the AJ for development of the record and further processing. ORDER (E0400) The complaint is remanded to the Hearings Unit of the EEOC's Indianapolis district field office. 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 issue a decision on the complaint in accordance with 29 C.F.R. § 1614.204. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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). COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400) 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 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, Acting Director Office of Federal Operations July 20, 2000 Date 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov.