01A12170_r
03-27-2003
Alvis L. Hudson, et al., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alvis L. Hudson, et al. v. Department of Veterans Affairs
01A12170
March 27, 2003
.
Alvis L. Hudson, et al.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12170
Agency No. 200M-785
Hearing No. 280-A0-4088X
DECISION
INTRODUCTION
Complainant, a Claims Examiner at the Education/VACO St. Louis facility,
filed a class complaint of employment discrimination alleging harm on the
bases of race (African American), color (black), sex (male and female),
national origin (�Africa�), age, and reprisal. The agency forwarded the
class action to an EEOC Administrative Judge (AJ) for a certification
determination, pursuant to 29 C.F.R. � 1614.204(d)(1). The AJ,
on October 16, 2000, denied certification because the claims lacked
numerosity, commonality, typicality and adequacy of representation,
and ordered the agency to process complainant's individual claims.
The agency, on January 16, 2001, adopted the AJ's findings,<1> and
complainant appealed to this Commission. For the reasons set forth
herein, the agency's decision is affirmed.
BACKGROUND
In his complaint, complainant alleged class-wide discrimination on the
bases of race, color, sex, national origin, age, and reprisal, when
he was not selected for the position of Supervisory Claims Examiner
as a result of personnel policies and practices, and discrimination
with respect to the issues of admonishments, awards, failure to hire,
failure to promote, harassment, performance appraisals, termination,
training, and other non-selections. Complainant, as the class agent,
never provided specificity with regard to any of the issues, with
the exception of the non-selection. According to complainant, he was
�attempting to build a historical case based on the last 25 years.�
With regard to numerosity, the AJ found that complainant failed to
identify the number of other purported class members, thus determining
that complainant's conclusory allegations cannot support class
certification. With regard to commonality, the AJ found complainant
failed to �bridge the gap� between his personal claim, and any claims
of the purported class. With regard to typicality, the AJ found that
complainant failed to show that he possesses substantially the same
interests or suffers substantially the same injuries as the class members.
With regard to adequacy of representation, the AJ found that complainant
has not shown that he has sufficient resources and support staff for
the necessary prosecution of the matter. Further, the AJ found that
complainant has not established that he has experience and expertise to
represent the purported class.
ANALYSIS AND FINDINGS
The purpose of a class action complaint 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
Tel. Co. of the SW v. Falcon, 457 U.S. 147, 155 (1982) (citation omitted).
Under EEOC Regulations, a class complaint must allege: (i) the class
is so numerous that a consolidated complaint concerning the individual
claims of its member is impractical; (ii) there are questions of fact
common to the class; (iii) the class agency'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). The agency may reject a
class complaint if any of these certification prerequisites are not met.
See Garcia v. Department of Justice, EEOC Request No. 05960870 (October
10, 1998).
A class complaint must specifically identify questions of fact or law
that are common to all members of the class. General Tel. Co. of the
SW v. Falcon, 457 U.S. 147 (1982). Factors to consider in determining
commonality include whether the practice at issue affects the whole
class or only a few employees, the degree of 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).
In the present case, complainant has not shown common facts between
the class members. First, complainant, a male born on March 26, 1962,
was not a member of two of the protected classes he seeks to represent
(females and those 40 years of age and older). Second, complainant's
non-selection claim presents individual questions of law and fact which
predominate over the class complaint claims. Further, complainant makes
sweeping allegations in the class complaint without any evidence as to
how the potential class experienced similar events. The Commission is
not persuaded that common questions exist among purported class members.
Rather, the Commission finds that the class complaint constitutes an
�across the board� attack on alleged employment practices committed
by the agency. No policy has been clearly identified by complainant
which has the effect of discriminating against the class as a whole.
Therefore, we find that the purported class failed to meet the requirement
of commonality. See Hopkins v. United States Postal Serv., EEOC Appeal
No. 01A02840 (July 22, 2002).
Complainant, as class agent, also fails to meet the typicality requirement
necessary for certification of a class complaint. As a practical matter,
�commonality and typicality tend to merge.� General Tel. Co. of the SW,
457 U.S. at 159, n. 13. Typicality requires some nexus between the
class agent's claims, and the claims of other members of the class,
such as similar employment conditions and similar effects from the
discrimination. Contreras v. Department of the Treasury, EEOC Appeal
No. 01961671 (May 11, 1998) (citing Morrison v. Booth, 763 F. 2d 1371
(11th Cir. 1985)), req. for recons. den., EEOC Request No. 05980856
(October 22, 1999); see Kennedy v. National Aeronautics and Space
Administration, EEOC Appeal No. 01993626 (April 26, 2001) (citing
Johnson-Feldman, et al. v. Department of Veterans Affairs, EEOC Appeal
No. 01953168 (August 7, 1997) (citations omitted)). Complainant fails
to show any type of nexus between his individual claims and those claims
of the purported class. Further, complainant fails to show substantially
the same interest or harm as those in the purported class.
When determining whether numerosity exists, relevant factors to consider,
in addition to the number of class members, include geographic dispersion,
ease with which the class may be identified, the nature of the action, and
the size of each claim alleged. See Wood v. Department of Energy, EEOC
Request No. 05950985 (October 5, 1998). While there is no minimum number
required to form a class, and an exact number need not be established
prior to certification, courts have traditionally been reluctant to
certify classes with less than thirty members. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993); Vigil,
Jr., et al. v. Department of the Army, EEOC Appeal No. 01A02257 (Dec. 13,
2002); Harris v. United States Postal Service, EEOC Appeal No. 01994220
(March 14, 2002) (citations omitted); cf. Risner v. United States
Postal Service, EEOC Appeal No. 01994323 (September 13, 2002) (noting
that courts have been reluctant to certify classes below approximately
50 members) (citation omitted). The Commission finds that complainant
failed to meet the numerosity requirement. Complainant does not give an
approximate number for the purported class, does not present evidence
to establish a number which constitutes the class, and fails to raise
specific allegations with respect to any member of the purported class.
Complainant's conclusory allegations cannot support the element of
numerosity for class certification.
Since we have found that complainant's request for class certification
fails because it does not meet the requirements of commonality,
typicality, and numerosity, it is not necessary to make a determination
on adequacy of representation.
CONCLUSION
Accordingly, the agency's decision to deny class complaint certification
is AFFIRMED.
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 (S0900)
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 27, 2003
__________________
Date
1The agency stated that it would process
complainant's individual complaint.