07a40067
05-05-2005
Agency.
Douglas F. Powers v. Department of Transportation
07A40067
May 5, 2005
.
Douglas Powers,
Suzan McCarthy et. al,
Class Agents,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 07A40067
Agency Nos. 4-99-4127; 4-99-4106
Hearing Nos. 210-A2-6091X; 210-A2-6117
DECISION
The Class Agents and the agency filed timely cross appeals with this
Commission from the agency's decision dated November 14, 2003, refusing
to implement the EEOC Administrative Judge's decision to certify a
class action. Specifically, the AJ certified a class of Air Traffic
Control Specialists (ATCS) in the 2152 Classification Series located in
Headquarters and Regional Offices. The class alleged 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d)
et seq.
In the complaints filed October 15, 1999 (Suzan McCarthy) and October
22, 1999(Douglas Powers), the class agents alleged disparate treatment
and disparate impact on the bases of their gender (female/male) and age
(over forty years old) when they were denied coverage under the agency's
Managers, Supervisors and Staff Pay Plan (MSS), effective October 1,
1998 and the Movement Rules issued on May 25, 1999.<1>
In the Commission's previous decision we reversed the AJ's decision not to
certify the class on the grounds that he improperly considered the merits
of the class claims and not the criteria set forth in our regulations.
29 C.F.R. �1614.204 et seq; Powers v. Department of Transportation, EEOC
Appeal No. 01A11238) (November 5, 2001); recon. den. Request No. 05A20407
(May 3, 2002). In our decision, the Commission specifically found that
the class agent, Powers, asserted a personal harm because he alleged
that he did not receive the same pay as younger females (or in the
case of McCarthy, male employees) employees in the same job series who
are located in the agency's field offices. For this reason, we found
that the class stated a claim. We remanded the complaint for the AJ to
consider whether the class met the prerequisites for class certification.
The AJ found that according to agency records, there were 420 employees
over the age of 40 in the Regional and Headquarters offices and 155
female employees in those same locations. The employees, he found,
were not centrally located but dispersed throughout the United States
thereby making consolidation of the individual claims impractical.
Accordingly, the class met numerosity requirements.
The AJ found that despite the agency's contentions, the class agents
satisfied the prerequisites of commonality and typicality. Assuming that
Powers only alleged age discrimination, the AJ found that there was
nothing atypical about Powers' claim when compared to that of McCarthy
because they alleged the agency's pay plan discriminated against them
respectively on the basis of age and gender (female). Accordingly, the
AJ found that because the class agents alleged injury arose in the same
manner, in the same fashion and from the same general agency policy
as members of the proposed class, the class established typicality
and commonality. The agency does not dispute the qualifications of
the class representatives, therefore we need not address the issue of
adequacy of representation.
The agency appeals the AJ's decision certifying the class arguing
that the Commission should follow numerous decisions we previously
issued which found that this set of facts did not state a claim. Thus,
although the Commission already found in its previous decision on appeal,
that the class complaint stated a claim, the agency requests that we
revisit the issue. The agency also argues that the claims of the two
class agents are inherently contradictory and therefore, do not satisfy
the criteria of typicality. Specifically, because Powers and McCarthy
alleged gender discrimination on the basis that they are male and female,
they cannot logically raise claims typical of each other.
Finally, the agency argues that the claim raised by Powers was not
brought to the attention of an EEO counselor in a timely manner and should
be dismissed. The agency argues that because it notified employees of
its decision not to include Headquarters and Regional Office employees
in March 5, 1999, Powers' May 4, 1999 contact with an EEO counselor was
beyond the 45 day period.
The class opposes the agency's appeal and cross appeals the AJ's decision
to require that Powers be substituted as class agent. The class asserts
that Powers will adequately serve the interests of the class because
he has alleged a specific harm with respect to the agency's pay plan.
The class argues that the amount of his damages under the pay plan is a
separate matter and should not defeat his ability to vigorously pursue
the class claims.
ANALYSIS AND FINDINGS
Normally, we review the AJ's legal conclusion that a class should be
certified, using a de novo standard, that is, without a presumption that
the previous determination was correct. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 ( MD-110), ch.9-16 (November
9, 1999).
EEOC regulations define a class complaint as one filed on behalf of
a class by the agent of the class alleging that: (i) the class is so
numerous that a consolidated complaint of the members of the class
is impractical; (ii) there are questions of fact common to the class;
(iii) the claims of the agency are typical of the claims of the class;
and (iv) the agent of the class, or if represented, the representative
will fairly and adequately represent the interests of the class.
29 .C.F.R. �1614.204(a)(2).
In this case, the agency contests the Commission's determination that the
class complaint states a claim. This issue was already decided in our
previous decision cited above. The time for a review of our decision was
on reconsideration which the agency filed but was dismissed as untimely.
The agency has cited no authority for permitting another review and
we conclude that it is the law of the case. Plunkett v. United States
Postal Service, Request No. 05920288 (May 14, 1992).<2>
Turning to the agency's claim of untimely EEO counselor contact, our
regulations require that complaints of discrimination be brought to the
attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory
or, in the case of a personnel action, within forty-five (45) days
of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Here, the AJ found that Powers became aware of the agency's decision not
to include Headquarters and Regional Office employees in its MSS pay plan
on April 7, 1999 at an all employees' meeting on the subject decision.
Based on his contact with an EEO counselor on May 4, 1999 the AJ found his
claim was timely raised. The agency asserts that it notified employees
by memorandum dated March 5, 1999 and by electronic message on March 8,
1999 that they would not be covered by the MSS pay plan thus requiring
that Powers contact an EEO counselor by April 8, 1999.
The record contains a copy of the memorandum dated March 5, 1999 and
the electronic message dated March 8, 1999, but there is no evidence
that either class agent received these messages.<3> Moreover, the AJ's
finding that complainant received notification of the agency's action
on April 7, 1999 is supported by substantial evidence in the record,
notably the EEO counselor's report. The agency has not shown that
the AJ's finding of fact is not supported by the record. Accordingly,
the Commission concludes the AJ's decision was correct and it is affirmed.
Finally, we address the agency's argument that the class agents' claims
are not typical in that they are inherently contradictory of each other.
First, we find that the record reflects the class agent Powers asserted
both age and gender (male) discrimination in his amended complaint and
that the AJ erred in concluding Powers only alleged age discrimination.
In determining whether commonality and typicality have been satisfied,
a class agent must be part of the class he or 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. As a practical
matter, the "commonality and typicality requirements tend to merge."
Id. at 157 note 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).
The Commission recognizes that the two class complaints may not be
entirely consistent with each other but under our regulations, the AJ has
latitude to define the class, subdivide it or even to decertify the class
if necessary. 29 C.F.R. �1614.204(d); See Hines, Jr. v. Department of
the Air Force, Request No. 05940917 (January 29, 1996). Although the
Commission's requirements for an administrative class complaint are
patterned after Rule 23 of the Federal Rules of Civil Procedure, we are
guided by the fact that an administrative complainant has not had access
to pre-certification discovery in the same manner and to the same extent
as a Rule 23 plaintiff. See Moten et al. v. Federal Energy Regulatory
Commission, EEOC Request No. 05910504 (December 30, 1991).
We are satisfied that for each of the class complaints, the class agents
have identified a set of class members with a justiciable claim and in
numbers sufficient to satisfy a class action, such that the complaints
should be allowed to move forward at this time. Should the AJ determine
that the class should be subdivided or redefined based on additional
discovery, the AJ is more properly able to make that judgment.
This principle also holds true for the AJ's determination that the class
agent Powers should be substituted. We defer to the AJ's conclusion
that the proposed class agent should be substituted in order not to
hold any claim antagonistic to the class and to adequately represent
the class interests. Sedillo v. Department of Agriculture, EEOC Appeal
No. 07A20071 (July 7, 2002).
CONCLUSION
For these reasons, the Commission reverses the agency's Order which did
not implement the AJ's decision to certify the class action. We affirm
the AJ's certification of the class of Air Traffic Control Specialists in
the job classification series 2152, holding positions in Headquarters
and Regional Offices and who were not covered by the agency's MSS pay
plan and were covered by the Movement Rules. The class complaints are
remanded to the AJ for further action as directed below.
ORDER
The agency shall submit to the Hearings Unit of the Chicago District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. 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 proceed with
the complaint in accordance with 29 C.F.R. � 1614.204 et. seq and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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
May 5, 2005
__________________
Date
1The class requested to substitute class
agent Michele Behm (who filed a complaint in the Federal Court of Claims)
with Suzan McCarthy which the AJ granted.
2The agency further argues that the Commission's decision does not
follow certain other cases in which we found a similar set of facts did
not state a claim. However, the Commission has addressed the apparent
difference in approaches in claims involving the agency's pay plan in its
decision in Coleman v. Department of Transportation, Request No. 05A10034
(February 28, 2001). In that decision, the Commission clarified that
a complainant cannot pursue a generalized grievance that members of one
protected group were denied a benefit offered to another protected group
unless they also alleged a specific injury to him or herself as well.
Id at 2. Since the class agents in their class complaints both satisfied
this element, the Commission found that they properly stated a claim.
3The agency memorandum dated March 5, 1999 does not clearly state the
agency's decision not to cover the Headquarters and Regional Office
employees under the MSS pay plan and therefore, it is not clear that an
alleged harm occurred on that date.