0120103592
09-09-2015
Complainant, et al., Complainant, et al., Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
Complainant, et al.,
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120103592
Hearing No. 570-2009-00534X
Agency No. EU-FY-08-044
DECISION
Complainant filed an appeal from the Agency's August 10, 2010 final order concerning her class complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS this matter for further processing.
ISSUES PRESENTED
The issues presented on appeal are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) erred in not allowing any pre-certification discovery; and (2) whether the AJ properly determined that the class complaint should not be certified on the grounds that it failed to meet the three criteria of commonality, typicality and numerosity, as set forth in the Commission's regulations at 29 C.F.R. � 1614.204(a)(2).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Speech Language Pathologist at the Sembach Elementary and Sembach Middle Schools in Sembach, Germany. On May 14, 2008, Complainant filed a discrimination complaint in which she alleged that the Agency discriminated against her based on her disability (adjustment disorder with anxiety)1 when: (1) during the school years, 2005-2006 and April 2006 through April 4, 2008, the Agency subjected her to a hostile work environment; and (2) on March 12, 2007, she was not provided with a reasonable accommodation.
Complainant objected to completing the Agency's Request for Reasonable Accommodation Form on the grounds that she was being required to provide excessive personal medical information and an overly broad release of medical reports.
After completion of the investigation of her complaint, Complainant requested a hearing. At the same time, she sought to convert her individual complaint into a class action because, she alleged, she had uncovered information that the Agency had implemented worldwide, mandatory use of the Request for Reasonable Accommodation Form.2
The AJ issued an Acknowledgment and Order for Class Certification (AOCC) on August 5, 2009. The AOCC requested information from the parties regarding whether the complaint met the requirements of a class action. On August 20, 2009, Complainant, as Class Agent (CA), submitted Class Agent's Submission Pursuant to Acknowledgment and Order (CA Submission). On September 18, 2009, the Agency filed its Agency Response to Class Agent Submission (Agency Response).
The CA sought certification of a class of all Agency employees who had been potentially impacted by the Agency's use of a Request for Reasonable Accommodation Form (Form) from 2002 to the present. The class would include employees with a disability and/or employees with a serious medical condition who had sought an accommodation and completed the Form, who were asked to the complete the Form, or who had not requested a reasonable accommodation because of the Agency's use of the Form.
In the CA Submission, Complainant noted that she was harassed by being denied a reasonable accommodation on March 12, 2007, and allegedly subjected to a hostile work environment from 2005 through 2008. In June 2008, Complainant objected to signing the consent form for the release of her medical documents to her supervisor. On June 26, 2008, Complainant's supervisor denied her request for a reasonable accommodation. On January 29, 2009, the CA requested another reasonable accommodation. On February 5, 2009, the Agency sent the CA an electronic mail message indicating that it would review the accommodation request once the CA completed the Form. On February 6, 2009, the CA objected to the "breadth" of the Form. On April 2, 2009, the Agency informed the CA that her request for an accommodation remained pending.3
AJ's Denial of Pre-certification Discovery and Denial of Class Certification
In May 2009, the CA propounded her First Discovery Requests, which included interrogatories and document requests. In the CA Submission in August 2009, the CA requested that the AJ permit the parties to engage in pre-certification discovery. The Agency objected in September 2009. On July 9, 2010, the AJ issued his decision, simultaneously denying all discovery and dismissing the class complaint. In denying pre-certification discovery, the AJ found CA's arguments were "so lacking in the prerequisites for a class action that no amount of pre-certification discovery [could] cure the deficiency." The AJ also determined that the record contained sufficient information to rule on certification.
Noting that the CA had the burden of establishing that the putative class met the certification criteria, the AJ concluded that except for the requirement of adequacy of representation, the CA had failed to meet the class action criteria of commonality, typicality, and numerosity. The Agency adopted the AJ's decision.
CONTENTIONS ON APPEAL
The CA asserts that the AJ's failure to allow her pre-certification discovery was error and that because she was not allowed discovery, she could not meet the requirements for class certification. The CA also argues that class certification was appropriate, even without her having conducted pre-certification discovery. The CA points out that she was denied reasonable accommodation in March 2007. In May 2008, the CA was provided the Form to complete based on her March 2007 request for an accommodation which had been denied. The CA completed Part 1 of the Form. Thereafter, her supervisor forwarded to the CA Part III of the Form for her physician to complete. The CA objected to signing the Form on the grounds that it would result in "wholesale release" of her medical documents to her supervisor and because the Agency already had documentation of her disability since it was caused by an injury covered by workers' compensation.
In its response to the CA's arguments, the Agency agrees with the AJ's denial of pre-certification discovery. The Agency also contends that the CA failed to meet all the prerequisites for class certification.
The Agency asserts that the AJ did not err in disallowing pre-certification discovery. With respect to the AJ's dismissal, the Agency argues that its Form does not violate the Rehabilitation Act because it requests only medical information specifically related to the condition for which accommodation is requested.4 The Agency also asserts: that the Form was designed to elicit specific information concerning the employee's medical condition as it relates to the request for accommodation; is a vehicle for facilitating the interactive process; and that, there is no evidence suggesting that the information obtained from the Form is mishandled in a manner inconsistent with the Rehabilitation Act. The Agency contends that it is not its policy to refuse requested accommodations if an employee objects to the Form, or to force employees to complete it. The Agency also argues that the CA has presented no evidence of an Agency personnel management policy or practice that discriminates against a class of Agency employees and that the CA fails to present a colorable claim of disparate impact discrimination.
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." Gen. Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982) (citations omitted).
EEOC Regulation 29 C.F.R. � 1614.204(a)(2) states that a class complaint is a written complaint of discrimination 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 agent 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.
EEOC Regulation 29 C.F.R. � 1614.204(d)(2) provides that a class complaint may be dismissed if it does not meet the four requirements of a class complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. � 1614.107. This section, which is an adoption of Rule 23(a) of the Federal Rules of Civil Procedure, provides that the agency may reject a class complaint if any one of these prerequisites is not met. See 29 C.F.R. � 1614.204(d)(2).
Pre-certification Discovery
We find that the AJ's decision to deny certification without offering the CA an opportunity to conduct any discovery to address certification requirements constituted an abuse of discretion. Parties are entitled to development of the evidence as to matters pertaining to class certification. Wallace Jr., et al., v. Dep't of Justice, EEOC Appeal No. 01A30937 (Mar. 2, 2004); Spencer, et al., v. U.S. Dep't of Agriculture, EEOC Appeal No. 01A05280 (Sept. 25, 2002) req. for recon. den'd, Spencer, et al., v. Dep't of Agriculture, EEOC Request No. 05A30235 (Feb. 4, 2003). Here, the AJ failed to allow Complainant any discovery regarding the very criteria on which he denied certification.
Adequacy of Representation
We need not address the class requirement that the CA or class representative must "fairly and adequately protect the interest of the class." 29 C.F.R. � 1614.204(a)(2)(iv); Hadnot v. Dep't of Housing and Urban Dev., EEOC Request No. 05940202 (Nov. 10, 1994). The AJ concluded that the law firm representing the CA established its class action credentials and consequently was well qualified to represent the interests of the class. The Agency adopted the AJ's determination. We see no reason to disturb the conclusion that the adequacy of representation requirement was met.
Commonality and Typicality
Considering these two criteria together, the AJ concluded that the prerequisites of commonality and typicality were not met. In so concluding, the AJ determined that the CA "failed to satisfy even a minimal standard" of finding other employees who may have suffered the same injury that she alleged that she has. The AJ found, crediting the Agency's arguments, that the CA had not identified a single individual who found the Form objectionable for any reason.
The CA's argument on appeal is essentially the same as was raised before the AJ in her CA Submission. She asserts that her claims are common to, and typical of, the complaints of all members of the class.
In addressing a class complaint, it is important to resolve the requirements of commonality and typicality prior to addressing numerosity in order to "determine the appropriate parameters and the size of the membership of the resulting class." See Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05960233 (Apr. 8, 1997) (citing Harris v. Pan American World Airways, 74 F.R.D. 25, 45 (N.D. Cal. 1977)).
The purpose of the commonality and typicality requirements is to ensure that a class agent must "possess the same interests and suffer the same injuries" as unnamed class members. Falcon, 457 U.S. at 156. While these two criteria tend to merge and are often indistinguishable, they are separate requirements. Id.
Commonality requires that there be questions of fact common to the class; that is, that the same agency action or policy affected all members of the class. "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. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993). Typicality, on the other hand, requires that the bases of the class agent be typical of the claimed bases of the class. The underlying rationale of the typicality and commonality requirement is that the interests of the class members be fairly encompassed within the class agent's claim. Falcon, 457 U.S. at 159, n.15; 160.
We find, contrary to the AJ, that the commonality requirement has been established. Here, the CA has identified a policy or practice of the Agency which affects all employees seeking a reasonable accommodation. All employees seeking an accommodation were required to complete the Form when requesting an accommodation. Complainant asserts that this requirement constituted an Agency policy that violated the Rehabilitation Act which harmed the class as a whole because affected employees had to provide excessive amounts of personal medical information, provide the Agency with unlimited access to employees' medical records, and provide excessive and invasive medical information from the employee's physician. She contends that if an employee objected to the Form, the Agency would refuse the accommodation.
We next find, also contrary to the AJ's decision, that Complainant's claims are typical of the class because she had to complete the Form when she requested an accommodation. Complainant claims that she was subjected to discrimination by having to provide overly broad medical information on the Form when requesting an accommodation or not be accommodated. Therefore, Complainant's injury and interest are typical of the class. In sum, regarding commonality and typicality, the interests of putative class members are "fairly encompassed" within the CA's claim. Falcon, supra.
Numerosity
In his decision, the AJ wrote that the CA tried to satisfy the numerosity requirement through "reductive arithmetic." Pointing to the CA Submission, the AJ noted that the CA's figures from 2002 to the end of fiscal year 2007, show there were 222 discrimination complaints filed against the Agency, 74 of which alleged disability-related discrimination and of the 74, "at least" 12 complaints were related to reasonable accommodation matters.
The Agency contends on appeal that the CA has produced no evidence that the alleged putative class is so large as to make joinder impractical, having noted only 12 Agency complaints related to reasonable accommodation between the years 2002-2007. The Agency further asserts that of the 12, there is no indication whether any of the 12 complaints involved individuals who actually completed the Form, were asked to complete the Form or were deterred from completing the Form, and that any conclusion that the 12 complaints fit within the putative class is a highly improbable assumption.
The Commission has recognized that the exact number of class members need not be shown prior to certification. See Moten, supra. In the administrative process, as with the court process, the correct focus in determining whether a proposed class is sufficiently numerous for certification purposes is on the number of persons who possibly could have been affected and who, thus, may assert claims. Id. There is no set number of class members required to meet the numerosity prerequisite. Each case must be evaluated based on the particular circumstances involved. Mastren, supra. In Mastren, the Commission recognized that, generally, classes with 100 or more members meet the numerosity requirement. Although courts are reluctant to certify classes with fewer than 30 members, there are no specific cut-off points. Id.; Harris, supra. In addition to numbers, other factors such as geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff's claim, are relevant to the determination of whether the numerosity prerequisite has been met. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981); Walker v. U.S. Postal Serv., EEOC Appeal No. 0720060005 (Mar. 18, 2008).
We find that the numerosity criterion has been preliminarily satisfied, making joinder of the complaint impractical. The proposed class members would consist of all employees who had to complete or completed the Form when requesting an accommodation. In addition, the Agency has used the Form for several years, at least since 2002. Also, the Department of Defense Education Agency, against whom the complaint is lodged, is geographically diverse with overseas facilities and encompasses several states.5
CONCLUSION
It is the finding of the Commission that the CA has conditionally met the criteria for class certification.6 On remand, the assigned AJ shall afford the CA and the Agency the opportunity for any discovery necessary to ensure the class maintains certification and appropriate class definition.
Having found that the AJ improperly dismissed the class complaint, we certify the class, VACATE the Agency's final order and REMAND the complaint to the Agency for further processing.
ORDER
The class shall be defined as all employees, current and former, who requested reasonable accommodation and were required to complete and sign the Agency's Reasonable Request Form beginning in 2002 until such time as the use of the contested form was discontinued.
The Agency shall:
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 Hearings Unit of the Washington Field Office within thirty (30) calendar days of the date this decision becomes final. The Agency must request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with 29 C.F.R. � 1614.204(f).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), at Chap. 9 �VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
Sept. 9, 2015
__________________
Date
1 In a January 29, 2009 request for a reasonable accommodation, Complainant also identified her disability as asthma and chronic, obstructive pulmonary disease.
2 In an April 9, 2009 letter to the EEOC's Washington Field Office, Complainant sought leave to amend her complaint and to proceed as a class action regarding the Agency's use of its Request for Reasonable Accommodation Form as being violative of the Rehabilitation Act.
3 Failure to act on an accommodation request can result in a finding of discrimination. Complainant v. Nat'l Science Foundation, EEOC Appeal No. 0120121886 (Dec. 11, 2013) citing Shealy v E.E.O.C., EEOC Appeal No. 0120070356 (Apr. 18, 2011) and Villanueva v Dep't of Homeland Sec., EEOC Appeal No 01A34968 (Aug. 10, 2006); Cruzan v. Dep't of Defense, EEOC Appel No. 0120071893 (Aug 15, 2008).
4 In its response to the appeal and in the Agency Response before the AJ, the Agency noted that the Form was replaced in September 2009.
5 The Commission bears in mind that even after a class is certified, the AJ retains the authority to redefine a class, subdivide a class, or recommend dismissal of a class if it becomes apparent that there is no longer a basis to proceed with the class complaint as initially defined. See Cyncar v. U.S. Postal Serv., EEOC Appeal No. 0720030111 (Feb. 1, 2007) req. for recon. den'd, EEOC Request No. 0520070348 (May 1, 2007) (citing Hines, et al. v. Dep't of the Air Force, EEOC Request No. 05940917 (Jan. 29, 1996)).
6 Nothing in this decision should be construed to preclude additional discovery.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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