01982065
10-20-1999
Dale D. Antoine et al., Appellant, v. J. Henderson, No. 160-98-8932X Postmaster General, United States Postal Service, Agency.
Dale D. Antoine et al., )
Appellant, )
)
v. ) Appeal No. 01982065
) Agency No. CC-003-97 William
J. Henderson, ) Hearing
No. 160-98-8932X Postmaster
General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Dale D. Antoine (the class agent) timely filed an appeal with the Equal
Employment Opportunity Commission (Commission) from the final decision of
the agency concerning his class complaint alleging discrimination based
on race (Black) in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. Section 2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly rejected the
class agent's class complaint.
BACKGROUND
The class agent is employed as a Maintenance Mechanic, Level 7, at
the agency's Church Street Station in New York City. The Class Agent
filed a class complaint dated June 25, 1996, in which he alleged that
Black Maintenance Mechanics and Custodians have been discriminated
against by being denied certain training and employment opportunities.
The agency referred the complaint to an administrative judge (AJ), who
issued a recommended decision (RD) dated November 4, 1997, in which she
determined that the complaint met the four prerequisites for certification
set forth at 29 C.F.R. �1614.204(a)(2). The agency thereafter issued a
final decision (FAD) dated December 12, 1997, in which it rejected the
RD and found that the proposed class should not be certified. It is
from this decision that the class agent now appeals.
According to the class agent, the proposed class is comprised of two
groups, the first being all the Black Maintenance Mechanics (MPEs),
Levels 4, 5, and 7, in Manhattan. The class agent states that these
individuals comprise nearly 50% of Manhattan's MPEs, and he argues
that, because such a large percentage of MPEs are Black, the agency
has implemented policies designed to hinder the advancement of MPEs.
Specifically, the class agent asserts that MPEs have been denied the
opportunity to perform maintenance on, and receive training with regard
to, certain automated equipment, including the Advanced Facer Canceling
System (AFCS). According to the class agent, these opportunities are
given almost exclusively to Level 9 Electronic Technicians (ET-9s),
only 20% of whom are Black. The class agent asserts that the denial of
these opportunities has resulted in MPEs not receiving the training and
experience necessary to advance in their careers.
The second group identified by the class agent is comprised of Black
Custodians, Levels 2 and 3, employed in Manhattan. The primary argument
made on behalf of Custodians is that, because MPEs are being denied the
opportunity to advance, there are not enough vacant MPE positions into
which Custodians can advance. The class agent states that, between the
two groups, there are approximately 800 potential class members.
In finding that the proposed class should be certified, the AJ
first determined that, with 800 members, it satisfied the numerosity
requirement. Regarding the commonality and typicality requirements, the
AJ concluded that the proposed class members all shared claims that were
common and typical of one another, i.e., they had been denied training
opportunities and experience with regard to certain automated equipment.
Finally, the AJ found that the attorney (the Attorney) representing
the class �adequately set forth the claims of the purported class
and appears fully capable of fairly protecting the interests of the
class.� RD at 6. The AJ also found, however, that the individual who
was designated to assist the Attorney in representing the class was not
an adequate representative. In so finding, the AJ cited the fact that
this individual was not an attorney, and that, because he is an MPE,
he was a potential member of the class.
In rejecting the RD, the agency's final decision (FAD) found that
commonality and typicality had not been satisfied, initially noting that
the proposed class was comprised of three distinct groups (Custodians,
MPE-4s and 5s, and MPE-7s). The FAD found that merely alleging that
these three groups were denied training opportunities was insufficient to
establish that the agency maintains a policy or practice that disparately
impacts upon the class members. It also found that the class agent had
presented nothing which indicated that the class is being denied the
aforementioned opportunities because its members are Black. Regarding
numerosity, the FAD reiterates that there are three different groups and
that it is not apparent from the record that there are sufficient numbers
of individuals in each group to satisfy the numerosity requirement.
Finally, the FAD found that the adequacy of representation requirement
had not been satisfied insofar as there was no evidence that the Attorney
had any experience handling class complaints.
ANALYSIS AND FINDINGS
An individual litigant seeking to maintain a class action is required
to meet the "prerequisites of numerosity, commonality, typicality, and
adequacy of representation" set forth at 29 C.F.R. Section 1614.204
et seq. This section, which is an adaptation 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. 29
C.F.R. �1614.204(d)(2).
In considering the AJ's findings with regard to commonality and
typicality, we initially agree that the class agent has demonstrated
that MPEs have claims that are common and typical of one another.
Specifically, these individuals have all been precluded from receiving
training and experience on certain automated equipment which, arguably,
has affected their ability to advance. This includes, in particular,
the AFCS, and the Commission is cognizant of the class agent's allegation
that, although 97% of the maintenance routes allocated to the AFCS fall
within the MPE job description, training and experience on the AFCS
rests almost exclusively with the ET-9s.
We are not persuaded, however, that the claims of the Custodians are
common and/or typical of those of the class agent and the other MPEs.
In reviewing the class agent's submissions, it is apparent that he
focused more on the MPEs than on the Custodians, and we note that his
request for relief does not even mention the Custodians. Moreover, the
primary argument made on behalf of Custodians is that, because the MPEs
are being hindered in their ability to advance, there are insufficient
MPE vacancies into which the Custodians can advance. We find that this
harm is not a result of alleged discrimination against the Custodians,
but, rather, a peripheral effect of the alleged discrimination against
the MPEs. Accordingly, we find that the class should be limited to MPEs.
Regarding numerosity, EEOC Regulation 29 C.F.R. Section 1614.204(a)(2)(i)
requires that a class be so numerous that a consolidated complaint of the
members of the class would be impractical. This regulation is patterned
on Rule 23(a)(1) of the Federal Rules of Civil Procedure. The Supreme
Court has indicated that the numerosity requirement of Rule 23 imposes
no absolute limit for the size of a class complaint, but, rather,
requires an examination of the facts of each case. General Telephone
Co. v. EEOC, 446 U.S. 318, 330 (1980). In this regard, although courts
are reluctant to certify classes with 30 or fewer members, there are no
specific numerical cut-off points. See Harriss v. Pan American World
Airways, 74 F.R.D. 24, 23 F.R. Serv. 2d 1335, 1349 (N.D. Cal. 1977).
Because the Custodians are no longer part of the class, the number of
potential members is fewer than 800. Based on our review of the record,
however, we find it is reasonable to conclude that the number of MPEs
alone is more than sufficient to satisfy the numerosity requirement.
Finally, we see no basis for disturbing the AJ's finding regarding the
adequacy of representation. In this regard, we agree that the Attorney
will be able to fairly and adequately represent the interests of the
class. On appeal, appellant argues that the MPE who was designated to
assist the Attorney should not have been disqualified, noting that,
contrary to the AJ's conclusion, this individual was not a potential
class member insofar as he is White.
We note, however, that the AJ's disqualification of this individual
was also premised on the fact that he is not an attorney. In addition
to that, we note that this individual does not appear to possess any
experience litigating class complaints. Accordingly, we find that it
was appropriate for the AJ to disqualify this individual from assisting
the Attorney in the representation of the class.
CONCLUSION
It is the decision of the Commission to MODIFY the FAD and find that
the portion of the proposed class comprised of MPEs should be certified.
ORDER
It is the decision of the Commission to certify the class comprised of
Maintenance Mechanics, and the agency is ordered to continue processing
of the class complaint as it pertains to that group in accordance with
29 C.F.R. �1614.204(e) et seq. The agency shall acknowledge to appellant
that it has received the remanded complaint within fifteen (15) calendar
days of the date this decision becomes final.
The agency shall provide a copy of the notice of certification and request
for appointment of an Administrative Judge to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by
the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of
this decision becoming final. The agency shall then process the claim
for attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive
this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you
receive a timely request to reconsider filed by another party. Any
argument in opposition to the request to reconsider or cross request to
reconsider MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to
reconsider. See 29 C.F.R. �1614.407. All requests and arguments must bear
proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions
have interpreted the Civil Rights Act of 1991 in a manner suggesting
that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS
from the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY 30
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
10-20-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations