01984006
03-20-2000
Artimese A. Epps, et al., Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Artimese A. Epps, et al. v. Department of Agriculture
01984006
March 20, 2000
Artimese A. Epps, et al., )
Complainant, )
)
v. ) Appeal No. 01984006
) Agency No. 960326
Daniel R. Glickman, ) Hearing No. 270-96-9129X
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On April 21, 1998, complainant filed an appeal with this Commission from
a final agency decision (FAD) dated March 25, 1998, pertaining to her
class complaint alleging unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> This appeal is accepted for review in accordance with 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the reasons set forth below, the Commission finds that the class,
as defined herein, should be certified for further processing.
BACKGROUND
Complainant, along with three other individuals, filed a formal complaint,
dated December 21, 1995, on behalf of a class consisting of:
all past, present, and future Black employees of the National Finance
Center (NFC), Office of Finance and Management/Office of the Chief
Financial Officer . . . [including] all Blacks who may apply in the future
for promotion and all Blacks who would have applied for promotions but
for their belief that they would not have been promoted because of their
race, Black.
Complainant (class agent 1) is a GS-0525-05 Accounting Technician at
the NFC. The other class agents also work at the NFC, as a GS-0525-06
Accounting Technician (class agent 2), a GS-0343-12 Program Analyst (class
agent 3), and a GS-0304-04 Document Pay Clerk (class agent 4). They
alleged that the agency subjected the proposed class to discrimination by:
Not promoting Black employees to the Associate Director positions and
the GS-14/13/12/11/09/07/06/05 positions;
Not retaining Black employees in the GS-04/03 level positions and not
promoting them out of said level positions;
Denying performance awards to Black employees;
Denying quality step increase awards to Black employees;
Denying fair performance appraisals to Black employees;
Reinstating Black employees at a lower grade than they held in prior
positions;
Implementing reorganizations that caused Black employees to lose status,
duties, and functions, resulting in a loss of opportunities for career
advancement;
Denying training for career advancement to Black employees without
college degrees at the GS-7 grade and below;
Denying permanent status to temporary status Black employees;
Subjecting Black employees to adverse personnel rules, regulations,
and policies; and
Denying Black employees significant special projects/details that affect
career advancement.
Pursuant to 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified as
29 C.F.R. � 1614.204(d)), the agency forwarded the complaint to an
Administrative Judge (AJ) for a determination of whether the complaint
should be accepted and the class certified. In a decision dated October
15, 1997, the AJ found that the proposed class should not be certified,
because the complaint failed to meet commonality, typicality, and
numerosity requirements.
Regarding commonality and typicality, the AJ found that each class agent
alleged unrelated harm: Class agent 1 was not promoted, was downgraded to
GS-4, was denied training, and was given a delayed performance appraisal
(to disqualify her from promotion consideration); class agent 2 was denied
a GS-7 promotion, and mistakenly was declared ineligible for a different
position; class agent 3 was not promoted to GS-14, was downgraded to
GS-12 from GS-13, and was not placed in "all white" working groups; and
class agent 4 was not converted to a permanent position from temporary
status, and was not selected for a GS-5 position.<2> The AJ noted that
the only typical claim between the class agents involved the denial of
promotion or selection.
Regarding commonality, the AJ found that the claims failed to allege a
specific policy or "common facts" shared by each individual in the class,
such as subjective decision making, biased testing procedures, or word
of mouth recruitment. Further, the AJ noted that the issues raised on
behalf of the class involved virtually every employment decision made
over an undetermined period. Given the "across the board" nature of
the claims, and the lack of a common policy or practice affecting all
of the employees, the AJ found that the claims did not exhibit common
facts or typical claims as required for class certification.
The AJ also found that the class agent probably could not protect the
interests of the potential class members, since their claims stemmed from
unrelated matters. The AJ noted, however, that the attorney hired by the
class agent, with over twenty years of experience in civil rights law,
a resume that included a stint with the EEOC's Office of General Counsel,
and participation in over thirty class actions, could competently serve
as class counsel if the class was certified.
Finally, regarding numerosity, the AJ noted that the proposed class,
as stated, involved approximately 650 current and 150 former employees.
If the class was restricted to class members with "typical claims,"
the AJ declared, "it would be much smaller, and in all likelihood would
fail to satisfy . . . numerosity."
The agency accepted the AJ's decision as its final action, and the class
agent appealed.
ARGUMENTS ON APPEAL
The class agent argues that the claims share a common nexus or theme
-- they all involve employment practices controlled by a centralized
administration in the NFC personnel office. The class agent contends
that all of the claims concern barriers to Black employees' advancement
in the NFC because of personnel office practices. The class agent notes
that she is a Black employee and thus is a member of the class affected
by the same personnel office practices as other employees.
The class agent attached a document to her appeal entitled "Final Report -
Review of NFC Promotion Practices." This review, apparently prepared by
the Office of Personnel Management, noted that many employees expressed
dissatisfaction with the merit promotion process, based on perceived
preselection, nepotism, favoritism, discrimination, and unfair panel
composition. The review stated that many of the problems stemmed from the
Human Resources Management Office (HRMO), which black employees viewed
as "the enemy." The report found widespread frustration from agency
employees because of difficulty gaining promotions. As an example,
the report listed the HRMO practice of waiting until an announcement
is closed, and then sending requests for additional information to some
applicants and warning them that their failure to provide the information
before the application period closed would result in disqualification
of their application. According to the report, management also admitted
that particular employees are "recruited" for certain positions, but if
those recruits do not make the best qualified list, then the announcement
is canceled without explanation.
Additionally, the report provided statistics regarding the grade-level of
the work force by race. These statistics indicated that 36% of Black
males and 26.9% of Black females held positions at the GS-11 level
or higher, compared to 73.1% of White males, 76% of Hispanic males,
and 71.4% of Asian males.<3> The report also noted that an inordinate
number of EEO complaints were filed by NFC employees alleging harm from
the merit promotion system.
ANALYSIS AND FINDINGS
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)
[citations omitted]. 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). The agency
may reject a class complaint if any of the prerequisites are not met.
See Garcia v. Department of Justice, EEOC Request No. 05960870 (Oct. 10,
1998) (citing 29 C.F.R. � 1614.204(d)(2)). Further, a class complaint
must identify the policy or practice adversely affecting the class
as well as the specific action or matter affecting the class agent.
29 C.F.R. � 1614.204(c)(1).
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 note 13.
When alleging a claim of "across the board" discrimination, allegations of
specific discriminatory treatment, absent evidence of some common policy
or practice such as biased testing procedures or proof of an entirely
subjective decision-making procedure, do not support class certification.
See id at 159 note 15. "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 (Oct. 27, 1993).
The only typical claim between class agents 1, 2, and 3 involves
promotions. No other claim is shared between the class agents,
and no common harm is alleged beyond that of the HRMO office merit
promotion practices. No common facts were presented with regard to
the non-selection claim of class agent 4. Therefore, to the extent
that the class claim alleges harm from any matter other than promotion,
the AJ and the agency properly found that no class should be certified.<4>
Regarding promotion, however, the class agents have raised typical claims,
and have provided evidence that the harm was not confined to a single
position, grade level, or division at the NFC. See Moten v. Federal
Energy Regulatory Commission, EEOC Request No. 05960233 (Apr. 8, 1997)
(Noting that when common facts exist, such as centralized promotion
policy and practices, a class agent may represent people from more than
one job group). The "common facts" involve policies and practices of
the HRMO, which the class agents claim caused the same harm to all Black
employees -- denial of promotions or selection.
In Moten, supra, the Commission found that evidence of a centralized
promotion policy, enacted separately by each facility office, was
sufficient (at least provisionally) to find adequate commonality
and typicality between a class of non-supervisory Black employees in
different grades and at different facilities. In the present case, the
centralized promotion policy affects employees at a single facility.
The Commission finds that the class agents have presented sufficient
information to satisfy both commonality and typicality with regard to
the denial of promotions and selections.<5>
Commonality and typicality are required, at least in part, to ensure that
unnamed class members are adequately represented by the class agents.
See Falcon, 457 U.S. at 156. Therefore, to some extent, the adequacy
of representation prerequisite also merges into a single analysis with
commonality and typicality. See id., at 157 note 13. The class agents,
as Black employees with typical harm allegedly caused by common facts,
can adequately protect unnamed class members. Further, the representative
chosen by the class agent is competent to handle the certified claim.
Since the class involves the consideration of Black employees for
promotions, the class is too numerous to adequately handle individual
complaints. Eligible class members include:
All current and former Black employees of the NFC who have applied for
but not received promotions; the class also may include any current or
former Black NFC employee who did not apply for a promotion because of
the perception that they would not be promoted because of their race,
but otherwise would have applied.
The Commission notes, however, that our regulations concerning the period
after class claim acceptance not only provide for discovery but give the
AJ discretion to redefine a class, subdivide it or recommend dismissal
if it is discovered that there is no longer a basis to proceed as a
class complaint. 29 C.F.R. � 1614.204(d); Dumbar v. Social Security
Administration, EEOC Appeal No. 01975435 (July 8, 1998), request to
reconsider denied, EEOC Request No. 05981075 (January 22, 1999).
CONCLUSION
Accordingly, the agency's denial of class certification regarding the
promotion of current and former Black employees is REVERSED, and the
claim is REMANDED for discovery. The claims of class agent 4 are not
typical of the class, and therefore, class agent 4 may not serve as
agent for the remanded class. The agency's denial of certification for
all other claims is AFFIRMED.
ORDER
The agency is ordered to perform the following:
Process all individual complaints from the class agents that do not
concern the denial of promotion in accordance with 29 C.F.R. � 1614.108.
Within forty-five days of the date this decision becomes final, the
agency shall issue a notice of processing of such claims as individual
complaints.
Notify potential class members of the accepted class claim within
fifteen days of the date this decision becomes final in accordance
with 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified as 29 C.F.R. �
1614.204(e)).
Forward a copy of the class complaint file and a copy of the notice to
the appropriate EEOC District Office within thirty 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).
Send a copy of all notices and letters ordered above to the Compliance
Officer as provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
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:
March 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The record does not contain a copy of the class agent's motion for class
certification, to which the AJ cites to support his factual findings.
3Female employees held a considerably lower percentage of such high-level
positions: 24.6% of White females, 31.2% of Hispanic females, and 40%
of Asian females. The statistics provided no evidence regarding rates
of promotion, promotion eligibility, or any other potentially useful
information.
4The denial of class certification does not end the processing of
individually filed complaints. See 64 Fed. Reg. 37,644, 37,658 (1999)
(to be codified as 29 C.F.R. � 1614.204(d)(7)). Since no claims were
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
as 29 C.F.R. � 1614.107), the agency must process the individual
complaints pursuant to 64 Fed. Reg. 37,644, 37,656 - 37,657 (1999)
(to be codified as 29 C.F.R. � 1614.108).
5In Moten, the Commission noted that other cases denying certification
on similar grounds were based on extensive evidence garnered from weeks
of hearings. In the present case, and in Moten, no such hearings or
discovery appear to have been conducted.