Agency.

Equal Employment Opportunity CommissionDec 21, 2004
07A40012 (E.E.O.C. Dec. 21, 2004)

07A40012

12-21-2004

Agency.


Linda Wylie et al. v. Department of the Treasury

07A40012

December 21, 2004

.

Linda Wylie et al.,

Class Agents,<1>

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 07A40012

Agency No. 03-0008C

Hearing No. 320-2003-08436X

DECISION

Following its October 27, 2003 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) decision certifying the complaint as a

class complaint. The class agents claimed that the agency discriminated

against them and all female employees at the United States Mint in

Denver, Colorado, (facility) on the basis of sex with regard to job

assignments, promotions, training, terminations, and other terms and

conditions of employment, and created a hostile working environment

based on sex. In addition, they claimed that the agency created an

environment where complaints were ignored and where those who complained

incurred retaliation. For the reasons provided below, the agency's FAD

is REVERSED and REMANDED.

Background

The record reveals that on March 7, 2003 eight of the class agents sought

EEO counseling concerning the facility's treatment of female employees.

They presented a petition signed by 71 of the 127 full- and part-time

female employees at the facility.<2> The petition listed 21 examples

of disparate treatment experienced by female employees, ranging from

sexual harassment to lack of promotions, training, and opportunities for

women, and including inequalities in pay, denial of leave, refusal to

audit and upgrade Die Vault positions which were in large part staffed

by female employees, and unsupportive managers and union officials.

The eight employees expanded on these issues with the counselor and

further indicated that such discriminatory practices were widespread at

the facility and pervasive throughout various levels of rank-and-file

employees as well as management.

On May 30, 2003, these eight employees, along with 24 additional female

employees at the facility, signed a formal EEO complaint, claiming that

the agency had discriminated against them and a class of persons as

referenced above. These 32 women attached a statement to the complaint

indicating, among other things, that a culture of sex discrimination

existed at the facility and that management and the EEO office either

participated in or facilitated such a culture. See generally Formal

Complaint, Exhibit B, Statement of Discriminatory Actions (statement).

The statement said that the facility "through its management, has

created a hostile gender-based work environment, engaging in a pattern

and practice of discrimination against female employees based on their

gender in terms of job assignments, promotions, training, discipline,

terminations, sexual harassment, and other terms and conditions of

employment," id., p. 1, and that "the EEO office inadequately enforces

and investigates discrimination charges." Id., p. 3.

On August 5, 2003 the Administrative Judge (AJ) issued an Order

designating all 32 signatories as class agents. Pursuant to 29 C.F.R. �

1614.204(d)(7), the AJ issued a Decision on September 18, 2003, certifying

the class complaint. On October 27, 2003, the agency issued a Final Order

declining to implement the AJ's Decision and simultaneously appealing

the AJ's decision to the Commission.

On appeal, the agency argues that the AJ erred by considering untimely

claims and claims that were not raised during counseling. In addition,

the agency argues that the AJ erred by concluding that the discrete claim

of one of the class agents, LW, constituted a "pattern and practice"

claim. The agency next argues that the AJ's definition of the class is

erroneous, and finally, that LW failed to state a claim. In response,

the class agents argue that the agency's arguments are not properly raised

because the only matter currently at issue is whether or not the complaint

meets the class certification requirements of 29 C.F.R. � 1614.204(a)(2),

an issue which the class agents argue the agency's brief does not address.

Analysis and Finding

The purpose of class action complaints is to economically address

claims "common to [a] class as a whole ... turn[ing] on questions

of law applicable in the same manner to each member of the class."

General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155

(1982). Under EEOC Regulations, a class complaint must allege that: (i)

the class is so numerous that a consolidated complaint concerning the

individual claims of its members is impractical; (ii) there are questions

of fact common to the class; (iii) the class agent's claims are typical

of the claims of the class; and (iv) the agent of the class, or, if

represented, the representative, will fairly and adequately protect the

interests of the class. 29 C.F.R. � 1614.204(a)(2). A class complaint

may be dismissed for failing to meet the above-listed requirements,

or for any grounds provided in 29 C.F.R. � 1614.107(a). See id.

To merit class certification, a class agent must be part of the class

she hopes to represent, and must "possess the same interests and suffer

the same injuries" as unnamed class members. Falcon, 457 U.S. at 156.

In analysis, the "commonality and typicality requirements tend to merge."

Id. at 157 n. 13. "Factors to consider in determining commonality are

whether the practice at issue affects the whole class or only a few

employees, the degree of local autonomy or centralized administration

involved, and the uniformity of the membership of the class, in terms

of the likelihood that the members' treatment will involve common

questions of fact." Mastren v. United States Postal Service, EEOC

Request No. 05930253 (October 27, 1993). Although they need not be

identical, typicality requires that the class agent's claims must be

sufficiently typical to encompass the general claims of the class members

so that it will be fair to bind the class members by what happens with

the agent's claims. Conanan v. Federal Deposit Insurance Corporation,

EEOC Appeal No. 01952486 (January 13, 1998) (citing Falcon, 457 U.S. at

156). The overriding typicality principle is that the interests of the

class members must be fairly encompassed within the class agent's claim.

Falcon, 457 U.S. at 159, n.15; 160.

Regarding the agency's argument concerning timeliness, we note that

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of an

alleged discriminatory personnel action. The agency argues that of all

the issues raised before the EEO counselor, only one incident occurred

within the 45-day period. Furthermore, the agency maintains, this single

incident is not typical of the claims of the remaining class members.

Specifically, the agency contends, the single timely claim involved

one of the class agents, LW, being removed from her position as EEO

Assistant, GS-7, and reassigned to a Security Assistant, GS-5 position,

while the remaining class agent's claims addressed various other issues,

primarily sexual harassment, but also including lack of promotions,

training, and opportunities for women, inequalities in pay, denial of

leave, unsupportive managers and union officials, and other issues.

Sexual Harassment

A review of the record reflects that LW did not make a claim of sexual

harassment while the majority of the class agents did claim various

incidents of sexual harassment. We disagree, however, with the agency's

contention that none of these incidents were timely raised. We note

that one of the class agents, CG, averred that on February 14, 2003 a

male co-worker "came up behind me and pressed the front of his body into

the back of my body," while another, JH, averred that male co-workers

"currently" have sexually offensive pictures on their toolboxes.

Additional class agents, including DF, one of the original eight women who

contacted the EEO counselor, alleged a number of specific incidents of

sexual harassment on specific dates following the initial EEO counselor

contact on March 7, 2003. We therefore find that allegations of sexual

harassment were timely raised.

The agency argues that the AJ erred in considering many of the above

claims because they were not raised in counseling. We note, however,

that the class agents have indicated that they attempted to raise

additional claims in counseling but that the counselor was unreceptive

and refused to interview additional witnesses. See Statement, p. 3.

The class agents repeated this claim before the AJ. See Complainant's

Supplemental Brief in Support of Class Certification, Exhibits 1 & 2.

In view of the fact that the class agents have included an allegation that

the EEO office fails to address EEO charges as one aspect of the overall

class complaint,<3> we find that equity demands that the class members

not be prejudiced by the fact that none of the eight women who visited

the counselor was able to identify an incident of sexual harassment that

occurred 45 days prior to the initial EEO contact, albeit that some of

the class agents, including DF, alleged incidents of sexual harassment

occurring after the initial EEO contact.

While the agency on appeal argues that the sexual harassment allegations

fail to meet the requirements of typicality or commonality with respect

to the claim of demotion, the agency has made no argument that any of

the sexual harassment allegations lack commonality and typicality with

respect to each other. The purpose of the commonality and typicality

requirements is to ensure that class agents possess the same interests

and suffer the same injury as the members of the proposed class.

See General Telephone Company of the Southwest v. Falcon, 457 U.S. 147

(1982). In application, the commonality and typicality prerequisites

tend to merge and are often indistinguishable. Id. With respect to

commonality, we find that the class agents raise common questions of fact

in alleging that the agency created an environment hostile to women,

that management was aware of and tolerated such a hostile environment,

that the agency failed to exercise reasonable care to prevent and/or

correct harassing behavior, that the agency anti-harassment policies

and mechanisms for receiving and investigating harassment complaints

were ineffective, and that complaining women were retaliated against.

With respect to typicality, we note that, while each class agent's

individual allegation may involve a unique combination of facts, the

class agents claims are typical in alleging that management was aware

of and tolerated a hostile work environment and failed to prevent and/or

correct harassing behavior, and that complaining women faced retaliation.

In Markham v. White, 171 F.R.D. 217 (N.D. Ill, 1997) the District Court

certified a class of women claiming sexual harassment and noted that

the typicality �requirement may be satisfied even though varying fact

patterns support the claims or defenses of individual class members

or there is a disparity in the damages claimed by the representative

parties and the other members of the class.� Id. at 223.

With regard to numerosity, we note that virtually all of the 32

class agents raised allegations of sexual harassment, and that the 71

signatories of the petition included sexual harassment as one of the many

examples of unfair treatment. Furthermore, the class agents instituted

the complaint on behalf of 127 full- and part-time female employees at

the facility. Accordingly, the Commission finds sufficient evidence to

establish numerosity. Finally, we find that the class agents have no

apparent conflict of interest with other members of the class and are

represented by adequate counsel. We therefore see no basis to disturb

the AJ's findings regarding commonality, typicality, numerosity and

adequacy of representation.

Retaliation and Other Issues

With regards to claims of retaliation, we find that timely claims were

raised during counseling when five of the eight women who contacted the

counselor reported that after signing the petition they were interrogated

by an agency Inspector.<4> In the Formal Complaint, the class agents

allege that this was done in an effort to intimidate both the authors and

signatories of the petition, and that the Inspector showed no interest

in the allegations contained in the petition but was only interested

in finding out whether any coercion was involved in the gathering

of the signatures. See statement, p. 3. Furthermore, some of the

class agents raised additional timely claims of retaliation when they

mentioned that coworkers and/or supervisors would shun them or act in a

hostile manner because of their participation in the instant complaint.

However, the record is not fully developed and the Commission cannot

determine whether commonality, typicality, and numerosity exist with

regard to this retaliation claim.

With regard to the claims of denial of training, denial of leave, and

nonselection, we note that in July 2003, TR alleged that she had been

denied training �last month,� JV alleged that in June 2003 a vacation

request had been denied, and SJ alleged that in May 2003 she learned that

her candidacy for a position on the Police Division's training committee

had been denied and a male was selected with no interviews having been

conducted. We therefore find such claims to have been timely raised.

With regard to the claims of unequal pay and refusal to audit and upgrade

Die Vault positions, we find that such claims are timely raised because

they constitute continuing violations.

While we find the claims in the above paragraph to be timely raised,

we note that the record is not sufficiently developed to enable the

Commission to determine whether commonality, typicality, and numerosity

exist for each claim. We further note that, given the nature of the

instant complaint, the AJ may decide that subclasses are appropriate

if sufficient class members meeting the commonality and typicality

requirements are identified. See 29 C.F.R. � 1614.204(d)(6).

With regard with the claim of termination, we note that none of the

class agents raised a timely claim of termination. Accordingly, this

issue is dismissed. The agency shall notify those complainants alleging

termination that their complaint(s) is(are) also being either accepted or

dismissed as individual complaints pursuant to 29 C.F.R. � 1614.204(d)(7).

Regarding the agency's argument that LW's individual claim fails to state

a claim, the agency argues that LW was not demoted from her position as an

EEO Assistant but was merely transferred back to her original position

as a Security Assistant after the conclusion of a temporary detail.

The evidence of record, however, shows that while LW's detail was termed

"temporary," its duration was in fact open-ended, and the reason it ended

was not because it had run some pre-assigned course, but rather because of

a decision by the agency EEO Manager. See EEO Counselor's Report. p. 6.

While the EEO Manager contends there were legitimate reasons for such an

action, such an argument goes to the merits of the issue. By claiming

she was demoted, LW states that she suffered a harm with respect to a

term, condition, or privilege of employment for which there is a remedy,

and is thus clearly aggrieved. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994). Thus, we find, she has

stated a legally cognizable claim.

Regarding the agency's contention that the AJ's definition of the class

is "fatally ambiguous," we are unpersuaded by the agency's argument.

We find,however, that, with regard to those class members alleging sexual

harassment and reprisal, the definition should be modified as follows:

All females employed at the U.S. Mint in Denver on or after January 21,

2003, who were subjected to:

1) a continuing pattern and practice of sex-based hostile environment

discrimination; and/or

2) illegal retaliation under Title VII.

Assuming commonality, typicality, and numerosity can be shown for

those members claiming demotion, denial of training, denial of leave,

nonselection, unequal pay, and refusal to audit and upgrade Die Vault

positions, the classes or subclasses should be defined accordingly.

Conclusion

Regarding the claim of sexual harassment, we find no basis to disturb the

AJ's decision certifying the class as to this issue. Regarding the claim

of demotion and reassignment, the record does not identify individuals

other than LW with timely claims. Similarly, with regard to the claims

of intimidation by the agency Inspector and other acts of discrimination

on the basis of reprisal, the record is insufficiently developed, as are

the claims of discrimination on the basis of sex with regard to denial

of training, denial of leave, nonselection, unequal pay, and refusal

to audit and upgrade Die Vault positions. On remand the class agents

should be given an opportunity to conduct discovery and present evidence

(e.g. narrative or statistical evidence) that the reprisal-based claims

of intimidation and other acts of retaliation, and the sex-based claims

of demotion and reassignment, denial of training, denial of leave,

nonselection, unequal pay, and refusal to audit and upgrade Die Vault

positions, meet the requirements of commonality, typicality, numerosity,

and adequacy of representation. The termination claim is dismissed.

Accordingly, the agency's decision dismissing the class complaint is

hereby reversed, and the class complaint is remanded to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER

This matter is remanded to the agency to transfer the case to the EEOC's

Denver District Office, and to request an assignment to an AJ.

The agency is ordered to perform the following:

1. Notify potential class members of the accepted class claim within

fifteen (15) calendar days of the date this decision becomes final,

in accordance with 29 C.F.R. � 1614.204(e).

2. Forward a copy of the class complaint file and a copy of the notice

to the EEOC's Denver District Office within thirty (30) calendar days

of the date this decision becomes final. The agency must request that an

Administrative Judge be appointed to conduct discovery for the certified

class claim, in accordance with 29 C.F.R. � 1614.204(f). The parties

shall cooperate to ensure that the discovery period is completed within

one hundred twenty (120) days of the date of this Order, but the discovery

period may be extended by application by either party. The AJ is notified

that the case should be processed in an expeditious manner.

3. The AJ shall order the parties to submit all evidence deemed relevant

to making a determination regarding commonality, typicality, numerosity,

and adequacy of representation with regard to the reprisal-based claims

of intimidation and other matters, and the sex-based claims of demotion

and reassignment, denial of training, denial of leave, nonselection,

unequal pay, and refusal to audit and upgrade Die Vault positions.

Pursuant to 29 C.F.R. � 1614.204(d)(6), the AJ shall make a determination

regarding whether subclasses are appropriate for these issues, and if so,

shall provide the existing class agents with the opportunity to designate

a new class agent or agents for each subclass. The AJ shall then issue

a new decision either certifying or dismissing these class complaints

as a whole, or certifying certain classes while dismissing others,

as appropriate.

4. The agency shall notify those complainants alleging termination

that their complaint(s) of termination is(are) being either accepted or

dismissed as individual complaints pursuant to 29 C.F.R. � 1614.204(d)(7).

5. Send a copy of all notices and letters ordered in provisions (1) and

(2) of this Order, as provided in the statement entitled �Implementation

of the Commission's Decision.�

A copy of the notice forwarding the class complaint to the EEOC Denver

District Office must be sent to the Compliance Officer as referenced

herein.

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

December 21, 2004

__________________

Date

1There are 32 class agents: Pam Allendorf, Linda

Beckius-Mascolo, Marylin Benjamin, Chrystal Campos, Sandra

Coate, Mary Ann Coleman, Diane Fields, Sandy Gemeinhardt,

Christine Gillworth, Susan Grace, Mary Green, Jessie Hatch,

Monica Holguin, Sylvia Jones, Linda Kemp, Violet Lamorie,

Beverly Mandigo-Milne, Sandra Marty, Deb Medina, Theresa

Rosales, Sharon Russom, Lorraine Sanchez, Sue Scheppler,

Phyllis Soto, Sheryl Stubbs, JoAnn Valdes, Kera Vann, Ronda

White, Judith Wilson, Frances Wing, Linda Wylie and Beverly

Young.

2According to an article in a local newspaper, the petition was sent to

agency headquarters in Washington DC, although the date of delivery is

not reported. See Formal Complaint.

3To the extent the class members raise issues addressing the processing of

their EEO complaint, the agency is hereby reminded of its responsibilities

under EEO Management Directive 110, 5-25.

4The terms "Inspector" and "Detective" are used interchangeably throughout

the record.