01a42220
06-03-2005
Agency.
Joe Sedillo, et. al. v. Department of Agriculture
01A42220
06-03-05
.
Joe Sedillo, et. al.,
Class Agent,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A42220
Agency No. 000873 & 010661
Hearing No. 350-A3-8000X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the class agent's
appeal from the agency's final decision in the above-entitled matter.
Briefly, the class agent filed Individual Complaint No. 000873, in which
he claimed that the agency had discriminated against him on the bases of
national origin (Hispanic), sex (male), age (51), and reprisal (prior EEO
activity) by subjecting him to discriminatory harassment and failing to
provide him with office space for his work as a Freedom-Of-Information-Act
(FOIA) / Privacy Act Officer and his duties as the lead class agent in
a previously filed class complaint.<1> Shortly, thereafter, the class
agent filed Class Complaint No. 010661, in which he claimed, in essence,
that the agency engaged in systemic and ongoing retaliation against
Hispanic employees who had engaged in prior EEO activity. The agency
consolidated the two complaints under No. 010661 and forwarded them to
an EEOC Administrative Judge (AJ) for certification as a class complaint.
The AJ issued a decision finding that Class Complaint No. 010661 failed to
satisfy the prerequisites for class complaint certification. The agency
implemented the AJ's decision in its final order, from which the class
agent now appeals.
ISSUE PRESENTED
Whether the AJ properly dismissed Class Complaint No. 010661 for failure
to meet the prerequisites for certification.
BACKGROUND
The agency employed the class agent as a FOIA / Privacy Act Officer,
GS-343-13, at its regional human resources office in Albuquerque, New
Mexico. Albuquerque served as the regional headquarters for Region 3
of the Forest Service, a bureau within the agency. In Class Complaint
No. 010661, the class agent identified the approximately 1,600 Hispanic
employees of the Forest Service, nationwide, as the purported class.
In its final action dismissing the class complaint, the agency defined
the issues in the complaint as follows<2>:
Retaliation against Hispanic employees by subjecting them to continuous
harassment which resulted in a hostile work environment.
Failing to select Hispanic employees for promotions, positions, training,
acting assignments, awards, and special assignments.
Subjecting Hispanic employees to adverse personnel actions, such as:
reassignments, demotions, letters of reprimand, terminations, letters
of caution, and placement on performance improvement plans (PIPS).
Senior agency officials ratifying and validating the discriminatory acts
of regional level officials toward Hispanic employees.
Failing to provide private office space to the class agent so that he
could conduct business as the lead class agent in Sedillo v. Glickman,
case number USDACR990031.
Upon receiving Class Complaint No. 010661 from the agency, the AJ
requested additional information from the parties in order to determine
whether the certification requirements had been met. The AJ advised the
parties that failure to meet any one of the certification requirements
would result in a determination that the class complaint should not
be certified. After requesting and being granted extensions by the AJ,
the parties complied with the AJ's request. Among the information items
submitted by the class agent were the following:
Statistical information demonstrating that at least 72 EEO complaints were
filed by agency Hispanic employees nationwide alleging harassment/hostile
work environment.
Statistical information showing that: (a) between 1994 and 1997, the
growth percentage of Hispanics within the USDA at the GS-12 level was
negligible (0.1%) and was (0.5%) at the GS-13 and GS-14 levels; and (b)
between 1996 and 2000, the overall number of Hispanics employed with the
agency consistently ran about 6 percentage points beneath the overall
Hispanic population in the nation while the number for whites employed
by the agency ran about 10 percentage points above their representation
in the overall U.S. population.
A report created by the agency's Special Assistant for Civil Rights in
Region 3, indicating that: (a) minority employees in Region 3 believed
they were passed over for promotions and not given the same opportunities
as their co-workers; (b) many minority employees had not raised their
concerns with management; and (c) both minority and non-minority employees
were afraid to speak out against management.
Testimony that the class agent provided before a civil rights team of
officials in Washington, D.C. during 1996, regarding discrimination
that approximately 19 Hispanic employees experienced in Albuquerque,
New Mexico.
A newspaper article dated August 28, 1999, that appeared in the Santa
Fe New Mexican, entitled, �Officer Witnesses Espanola Slaying,� which
discussed the murder of a Hispanic Espanola Ranger District Employee by
a Caucasian District Ranger.
An allegation that a �glass ceiling� phenomenon exists within the
agency that adversely affected Hispanic employees across the nation as
a result of the discriminatory nonselection for promotions, details,
training opportunities, and awards, as well as discriminatory performance
evaluations.
An allegation that a �chilling effect� existed throughout the agency,
which prevented Hispanic employees from filing EEO complaints.
The AJ found that the information submitted by the class agent was not
sufficient to establish that the commonality and typicality requirements
had been satisfied because it did not show that agency-wide policies or
practices of retaliating against Hispanic employees who engaged in prior
EEO activity existed. Accordingly, the AJ recommended a finding that
the class complaint did not satisfy the prerequisites for certification.
In its final action, the agency adopted the AJ's recommendation<3>. On
appeal, the class agent argues that he was denied his right to due
process since neither he nor any of the proposed class members were
afforded discovery.
ANALYSIS AND FINDINGS
Class complaints must meet the certification requirements set forth in
the EEOC's regulations before they can be processed on the merits. To
meet these requirements, the class agent must show that: (1) the class
is so numerous that a consolidated complaint of the members of the class
is impractical; (2) there are questions of fact common to the class;
(3) the claims of the agent of the class are typical of the claims of
the class; and (4) the agent of the class, or his representative,
will fairly and adequately protect the interests of the class.
29 C.F.R. �1614.204(a)(2). If the class complaint fails to meet any
of these prerequisites, it will be rejected regardless of whether it
meets the other three. 29 C.F.R. �1614.204(d)(2); Johnson-Feldman, et
al. v. Department of Veterans Affairs, EEOC Appeal No. 01953168 (August 7,
1997); EEO Management Directive 110 (November 9, 1999), at p. 8-4.
In "across-the-board" claims of class-wide discrimination such as this,
allegations of specific discriminatory treatment without evidence of
some common policy or practice will not support class certification.
Harris v. United States Postal Service, EEOC Appeal No. 01994220 (March
14, 2002). Across-the-board claims that survive the certification
process typically involve allegations that the challenged employment
decisions are made through a subjective process in which the same group
of supervisors or managers exercises total or near total discretion
in a discriminatory fashion. See General Telephone Company of the
Southwest v. Falcon, 457 U.S. 147, 159 n.15 (1983); Richardson v. Byrd,
709 F.2d 1016, 1020 (5th Cir.), cert. den. 464 U.S. 1009 (1983).
Reprisal is an appropriate basis for a class complaint where there is
a showing of a general practice of retaliation against employees who
oppose discriminatory practices or exercise their statutory rights.
See Holsey v. Armour & Co., 743 F.2d 199, 216-17 (4th Cir. 1984),
cert. den. 470 U.S. 1028 (1985). A class complaint may also be brought
when there is a showing that specific reprisal actions were taken against
a group of people for challenging agency policies, or where retaliatory
actions were routinely visited upon members of the purported class.
See Alston v. Department of Veterans Affairs, EEOC Appeal No. 01971752
(1999); Levitoff v. Department of Agriculture, EEOC Appeal No. 01913685
(March 17, 1992), request to reopen denied, EEOC Request No. 05920601
(September 10,1992).
In this case, the class agent's submissions to the AJ neither identify
nor describe the potential class members' positions, duty stations,
grades, or previous EEO activity. What little information there is in
the record indicates that the class members occupy different job series,
have different salary grades, and work under many different supervisors
in numerous locations around the country. Moreover, the record does not
reflect than any particular official or group of officials was involved in
more than one of the challenged actions. The class agent has therefore
not presented evidence sufficient to support an inference of retaliatory
policies or practices exists within the regional office at Albuquerque,
within Region 3, or throughout the agency's national organization.
Rather, the class agent merely asserts, in a conclusory fashion, that
the agency's nationwide management colludes on a grand scale to retaliate
against Hispanic employees who engage in protected EEO activity. For these
reasons, we find that the AJ properly determined that Class Complaint
No.010661 failed to satisfy the commonality requirement, and conclude
that the AJ correctly decided not to recommend certification for Class
Complaint No.010661. We need not address the AJ's other findings.<4>
The class agent's argument on appeal that he was denied due process
is totally without merit. The class agent, as the party seeking
certification of the class, bears the burden of proof that the class
complaint satisfies the certification prerequisites. Rodriguez v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01922365 (January
31, 1994). The AJ clearly gave the class agent an opportunity to
provide the requested information, and even granted him an extension.
The class agent has not presented any documents or sworn statements that
agency officials denied any request for information that he had made.
The Commission further notes that the class agent had in his possession
the names of 72 Hispanic employees who had previously filed complaints.
Once a class complaint is dismissed at the certification stage, the
individual complaint may still proceed if no other basis for dismissal
applies. EEO Management Directive 110 (November 9, 1999), at 8-4.
In its final action, the agency indicated that it would continue to
process the class agent's individual complaint, Complaint No. 000873.
To the extent that it has not already done so, the Commission directs
the agency to complete its processing of Complaint No. 000873 as an
individual complaint, in accordance with our order below.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final action
dismissing Class Complaint No. 010661.
ORDER
Unless it has already done so, the agency shall process Complaint
No. 000873 as an individual complaint in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the class agent that it has
received the remanded complaint within thirty (30) calendar days of the
date that this decision becomes final. The agency shall issue to the
class agent a copy of the investigative file and shall also notify the
class agent of all appropriate rights within one hundred and fifty (150)
calendar days of the date that this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the class agent
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) calendar days of receiving the class
agent's request.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
___06-03-05_______________
Date
1To the extent that the class agent refers to the agency's failure to
provide him with office space for his activities relating to the prior
class complaint, we find that this does not affect a term, condition,
privilege, or benefit of the class agent's employment, and therefore fails
to state a claim. See 29 C.F.R. � 1614.107(a)(1); Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
2In his formal complaint dated April 6, 2001, the agency identified
issues (2) and (3) as the class claims. In a memorandum dated October
12, 2001, the agency included issues (1), (4), and (5), and defined the
class complaint as set forth above in its final order dismissing the
class complaint.
3The AJ decision only addresses issues (2) and (3), whereas the final
agency action addresses all five issues that the agency identified in
its October 2001 memorandum.
4The class agent does not appear to have been represented by counsel on
appeal, which raises a question of whether this class complaint would
satisfy the requirement of adequacy of representation. See 29 C.F.R. �
1614.204(a)(2)(iv).