U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynwood R.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 0720160025 Hearing No. 510-2016-000011X Agency No. DEA-2015-01942 DECISION Following its August 22, 2016, final order, the Agency timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision on class certification. The AJ ordered the dismissal of the class complaint, which the Agency accepted. On appeal, the Agency requests that the Commission affirm its rejection of the AJ's instruction that the Agency notify members of the class that were identified by name of the decision on certification and their right to initiate equal employment opportunity (EEO) counseling for filing individual complaints. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS-1811-13 at the Agency's Caribbean Division facility in Guaynabo, Puerto Rico. Complainant filed a formal class complaint dated July 28, 2015, alleging that the Agency subjected the purported class to discrimination based on their national origin (Puerto Rico) when it excluded local hire employees not on a relocation agreement to Puerto Rico from eligibility for extended assignment incentive (EAI) pay in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Before the AJ ruled on class certification, on July 1, 2016, Complainant through his attorney withdrew his request to certify a class. Accordingly, the AJ issued an order on July 8, 2016, dismissing Complainant's class complaint. The AJ directed the Agency to take final action pursuant to 29 C.F.R. § 1614.204(d)(7), and resume processing the case as an individual complaint of discrimination. The AJ directed the Agency to notify any putative members of the class that were identified by name during the pendency of the class complaint of the decision regarding certification and their right to initiate EEO counseling for filing individual complaints. In its final order, the Agency wrote that the AJ properly dismissed the class complaint and instructed the Drug Enforcement Administration, consistent with 29 C.F.R. § 1614.204(d)(7), to process the claims in the complaint as an individual complaint of discrimination. The Agency rejected the AJ's instruction that it notify members of the class that were identified by name of the decision on certification and their right to initiate equal employment opportunity (EEO) counseling for filing individual complaints. On appeal, the Agency makes argument in support of its rejection. Complainant made no submission on appeal. ANALYSIS AND FINDINGS In making the instruction that the Agency rejected, the AJ relied on Mole v. Department of the Air Force, EEOC Request No. 05910578 (Sep. 25, 1991). The Agency argues that in Davenport v. Department of Justice, EEOC Appeal No. 07A30082 (Dec. 5, 2003) the Commission distinguished Mole. In Davenport, the Commission held that where class certification has been denied, there is no regulatory requirement that an agency notify potential class members, whether named or not, of the dismissal of the class complaint or of their right to file individual complaints. 29 C.F.R. § 1614.204. The Commission wrote in Davenport that to the extent Mole was relied upon by an AJ in directing an agency to notify identified members of the class that the class complaint was dismissed and they had a right to file individual complaints, the Commission clarifies that the notice instruction in Mole addressed the need to inform class members of the fact that a class has been decertified (emphasis in original), and Mole did not apply where a class was never certified. The Commission went on to hold that to the extent that identified EEOC decisions that cite Mole for the proposition that notice to "named class members" is required when class certification is denied, those decisions are abrogated to that extent. Included in the identified cases was Jones v. United States Postal Service, EEOC Appeal No. 01965858 (June 18, 1997), another case relied on by the AJ in the case before us. Applying Davenport, we AFFIRM the Agency's final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations January 11, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720160025 2 0720160025