01990384
02-23-2000
Eddie J. Lee, Sr., et al, Complainants, v. Louis Caldera, Secretary, Department of the Army, Agency.
Eddie J. Lee, Sr., et al v. Department of the Army
01990384
February 23, 2000
Eddie J. Lee, Sr., et al, )
Complainants, )
)
v. ) Appeal No.01990384
) Agency No.AWGR9708H0570
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The complainants timely filed an appeal with this Commission from a final
decision, dated September 16, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.204.<1> The Commission accepts the
complainants' appeal in accordance with EEOC Order No. 960, as amended.
For the reasons set forth below, the Commission finds that the complaint
should be certified as a class complaint.
ISSUES PRESENTED
Whether the agency erred when it defined the claims raised by the class
complaint, and when it found that the complainants failed to satisfy the
numerosity, typicality, and adequacy of representation requirements for
a class complaint.
BACKGROUND
After obtaining counseling, a class agent was joined by approximately
74 named class members in filing a formal class complaint dated July
24, 1997. The complaint alleged that the agency's Corps of Engineers,
Waterways Experiment Station, Vicksburg, Mississippi, discriminates
against African-American employees based on their race. The complaint
identified a number of means whereby the agency allegedly has delayed
and limited, and continues to delay and limit, the compensation and
career advancement of class members: lower grade-level placement upon
hire; classification of positions based on the race of the incumbents;
delay in and denial of within-grade promotions; denial of developmental
work assignments and training opportunities; non-competitive placement
of white employees into vacancies, sometimes facilitated by temporarily
downgrading positions; and non-selection of African-American employees for
announced vacancies, sometimes preceded by rewriting position descriptions
to match the abilities and experience of preselected white employees,
and/or the detailing of preselected white employees into vacancies prior
to announcement. The complainant indicated that the complaint may be
amended to include additional class agents. By letter of September 9,
1998, the complainants' attorney notified the agency that the complainants
were adding seven named class members as additional class representatives.
The agency forwarded the class complaint to the EEOC's District
Office in Birmingham, Alabama, and filed a brief in opposition to
class certification. By Order of July 29, 1998, the Administrative
Judge granted the complainants' motion for an extension of time to file
a response brief, specifying that "the complainant shall submit his
response to the Agency's Brief in Opposition to Class Certification,
on or before September 4, 1998." In the Order, the Administrative
Judge indicated that the complainants' motion included an intent to add
additional class agents. The Administrative Judge responded that he did
not appear to have the authority under 64 Fed. Reg. 37,644, 37658 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.204) to approve the addition or substitution of class agents.
The complainants mailed their brief with nineteen attached exhibits
to the Administrative Judge and the agency's attorney on September 4,
1998. The exhibits included the signatures of eighty-four class members,
eight affidavits, and a copy of the EEO Counselor's Report on the named
agent's individual complaint of racial discrimination. According to the
Counselor's Report, the class agent alleged that the agency promoted
a white co-worker to the WG-13 level noncompetitively on March 4,
1997, but did not promote him even though he had more experience in
the Model Shop. The Report indicated that the Model Shop supervisor
explained that he did not have to advertise the position because the
selectee had been performing WG-13 level duties for a reasonable period
of time. According to the Report, the supervisor acknowledged that the
class agent was an excellent employee who had successfully performed
at the WG-13 level. He maintained, however, that the class agent did
not demonstrate the assertiveness to continue seeking out jobs at that
level. According to the class agent's affidavit, the agency discriminated
against him in assignments, reassignments, and non-competitive promotions.
He indicated that he retired, effective July 1, 1997, because the agency's
discriminatory actions were degrading and demoralizing to him, and that
if he had been promoted, he would not have retired.
On September 9, 1998, the Administrative Judge wrote to the complainants'
attorney indicating that he received the response brief that afternoon.
The Administrative Judge informed the attorney that the brief was not
considered because his recommended decision had been sent to the agency
in the morning mail. The Administrative Judge noted that the brief had
not been mailed until September 4, 1998, and indicated that the attorney
had misinterpreted the Administrative Judge's Order in that the response
brief was to have been in the Administrative Judge's office on September
4, 1998.
In a decision dated September 9, 1998, the Administrative Judge defined
seven claims of racial discrimination raised by the class complaint
including claims of discrimination regarding the provision of training and
details. The Administrative Judge found that the complainants satisfied
the timeliness and commonality requirements for a class complaint.
Nevertheless, he recommended that the agency issue a final decision
dismissing the class complaint for failure to satisfy the numerosity,
typicality, and adequacy of representation requirements for a class
complaint. The Administrative Judge found that the complainants had not
satisfied the numerosity requirement because they had not shown that a
consolidated complaint of some seventy-four class members was impractical
since all but one of the potential class members lived in the Vicksburg,
Mississippi area. The Administrative Judge found that the complainants
had not satisfied the typicality requirement because the injury suffered
by the named class agent, non-promotion to a WG-13 Model Maker position,
was dissimilar to the injuries allegedly suffered by the co-complainants,
that is, the "approximately" seven allegedly discriminatory practices.
However, in finding that the commonality requirement had been
met, the Administrative Judge also found that twenty-three of the
co-complainants allegedly had been subjected to all seven allegedly
discriminatory practices, and concluded that any one of them could be
substituted as class agent. Finally, the Administrative Judge found
that the complainants had not satisfied the adequacy of representation
requirement because he had given their attorney a thirty-day extension
of time in which to file his brief, the time limit had expired, but the
Administrative Judge had not received the brief.
The final agency decision dismissed the class complaint for the reasons
set forth in the Administrative Judge's decision. The decision accepted
the class agent's individual complaint of discrimination as timely raised.
On appeal, the complainants submit evidence demonstrating that they
mailed their response brief to the Administrative Judge and to the
agency's representative on September 4, 1998, and that the brief
was received in the EEOC's Birmingham District Office on September
8, 1998. The complainants contend that the brief was timely because
the Administrative Judge's Order required submission by September 4,
1998 and, under EEOC Regulation 29 C.F.R. � 1614.604(b)), a document is
deemed timely if it is postmarked before the expiration of the filing
period.<2> The complainants contend that the complaint satisfies all
of the requirements for a class complaint The complainants also ask
Commission to recuse the Administrative Judge from further involvement
with the processing and hearing of the class complaint on remand.
The agency did not submit a brief in response to the complainants' appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.204(a)(1) defines a class as a group of
employees, former employees or applicants for employment who allegedly
have been, or are being, adversely affected by an agency personnel
management policy or practice that discriminates against the group on
the basis of their race, color, religion, sex, national origin, age, or
disability. EEOC Regulation 29 C.F.R. �1614.204(a)(2), modeled upon Rule
23 of the Federal Rules of Civil Procedure, defines four requirements that
must be satisfied for a class complaint to be certified: (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 of the class are typical of the claims
of the class; and (iv) the agent of the class, or, if represented, the
class representative, must fairly and adequately protect 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. Class complainants are not required
to prove the merits of their claims at the class certification stage;
however, they are required to provide more than bare allegations that
they satisfy the class complaint requirements. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993).
The purpose of the commonality and typicality requirements is to ensure
that the class agents possess the same interest and suffer the same
injury as the members of the class. General Telephone Company of the
Southwest v. Falcon, 457 U.S. 147, 156 (1982); East Texas Motor Freight
System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1979). It is important
to resolve the requirements of commonality and typicality prior to
addressing numerosity in order to determine the appropriate perimeters
and the size of the membership of the resulting class. Harris v. Pan
American World Airways, 74 F.R.D. 24, 15 F.E.P. Cases 1640, 1646
(N.D. Cal. 1977). The correct focus in determining whether the class
is sufficiently numerous for certification purposes is on the number
of persons affected by the agency's allegedly discriminatory practices
and who thus may assert claims. Moten v. Federal Energy Regulatory
Commission, EEOC Request No. 05960233 (April 8, 1997) . 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 addition to
number, other factors such as the 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 of Rule 23 has been
met. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th
Cir. 1981). The fact that potential class members no longer are employed
by the defendant employer, or that those employees who remain may have
a natural fear or reluctance to bring an action on an individual basis,
may also be significant factors when deciding whether the numerosity
requirement has been satisfied. Arkansas Education Association v. Board
of Education., Portland, Arkansas School District, 446 F.2d 763, 765-766
(8th Cir. 1971) (declining to overturn the certification of a class of
20 teachers and former teachers alleging salary discrimination based
on race). In order to satisfy the adequate representation criterion,
the class representative should have no conflicts with the class and
should have sufficient legal training and experience to pursue the
claim. Byrd v. Department of Agriculture, EEOC Request No. 05900291
(May 30, 1990). Competency of counsel is particularly important for the
protection of the rights of class members. Foster v. Department of the
Navy, EEOC Request No. 05920483 (December 23, 1992).
After a review of the entire record, including the appeal submissions of
the parties, the Commission finds that the complaint should be certified
as a class complaint. The Commission finds that the class should be
defined as composed of African-American employees and former employees
of the agency's Corps of Engineers, Waterways Experiment Station, in
Vicksburg, Mississippi.
The Commission finds that the class complaint states claims that the
agency has delayed and limited, and continues to delay and limit,
the wages and career advancement of class members because of their
race. The complaint identifies a number of means by which the agency
accomplishes the alleged career advancement discrimination. However,
the Commission finds that the means by which the agency allegedly
accomplishes the alleged career advancement discrimination should not
be treated as independent claims of discrimination under 29 C.F.R. Part
1614. See EEOC Management Directive (MD) 110, as revised (November 9,
1999), Example 3 and Practice Tip at 5-7. Instead, proven instances,
if any, in which white employees have been given preferential treatment
over African-American employees in ways that facilitated their career
advancement, e.g., in the provision of developmental training,
assignments, and details, should be treated as relevant evidence
supporting the class claim of career advancement discrimination. Evidence
of discrimination, e.g., in initial placement and in the granting or
denial of within-grade promotions, may be relevant to both wage and
career advancement claims.
The Commission finds that the record contains sufficient evidence
to demonstrate that there exist questions of fact in common to the
members of the class, that is, whether their wages have been held down
and/or their career advancement delayed and/or denied due to their race.
This evidence is presented in affidavit form and is also indicated by the
number of class members who allege that they have been adversely affected
by seven specified mechanisms of discrimination. The record indicates
that the specified mechanisms have been used to hinder the careers of
wage-grade as well as general schedule class members, supervisory as
well as non-supervisory class members. In so finding, the Commission
recognizes that the class agent and the class attorney have not had
access to pre-certification discovery. Hines, et al. v. Department of
the Air Force, EEOC Request No. 05940917 (January 29, 1996).
The Commission finds that the class agent's claim is typical of the claims
of the class in that, allegedly, he has been denied career advancement
through the mechanisms of denials of assignments, reassignment, and
non-competitive promotions. The named class agent also allegedly has
been denied the opportunity to compete formally for promotion by the
agency's failure to advertise promotional opportunities. In so finding,
the Commission recognizes that the complainant retired prior to the
filing of the class complaint. However, there is nothing inherently
disqualifying about a class agent's retirement, or even relocation.
Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05960233
(April 8, 1997) . Retirement may, however, limit the amount of recovery
to which he may be entitled if discrimination is proven. In finding that
the requirement of typicality has been satisfied, the Commission notes
that the complainants have listed several other individuals as class
agents. On remand, the complainants may move to substitute another class
member as class agent if the complainant no longer chooses to serve in
this capacity. Id. at note 13.
It is not clear from the record whether the named class agent has been
harmed by the alleged discrimination in wages, e.g., by performing
WG-13 duties on a regular basis for WG-11 pay. If not, on remand the
complainants should move to establish a subclass of employees and former
employees who have been harmed by the alleged discrimination in wages,
and name a new subclass agent.
The Commission finds that the complaint satisfies the numerosity
requirement for a class complaint because it is composed of more than
sixty identified employees and former employees who alleged they have
been harmed by the alleged career advancement discrimination. See Moten
v. Federal Energy Regulatory Commission, EEOC Request No. 05960233
(April 8, 1997) (forty-seven easily identifiable employees working in
the same geographical area falls at the cusp of what has been deemed
appropriate for meeting the numerosity requirement). In addition, it
appears that the class may contain significantly more class members who
may have been harmed by the alleged career advancement discrimination,
including employees and former employees who have not yet learned of
the class complaint, employees who may not have joined the complaint
as named complainants for fear of retaliation, and additional former
employees who no longer reside in the Vicksburg area. The Commission
also finds that administrative resources will be conserved if both
the wage and career advancement claims are heard together as class
claims, whether or not there are sufficient class members who have been
harmed by the alleged discrimination in wages to satisfy the numerosity
requirement standing alone. The Commission bases this finding on the
fact that evidence proving racial discrimination in wages, including
initial grade-level placement, denial and delays in the granting of
within-grade promotions, and classification of positions based on the
race of the incumbents (e.g., requiring African-American employees to
perform the duties of higher level positions without reclassification),
will be relevant evidence for the denial of career advancement claim.
Thus, consideration of the claims in one complaint will prevent needless
duplication of effort on the part of the parties and the Commission than
would occur if the claims were addressed separately.
Finally, the Commission finds that the attorneys representing the
complainants have extensive litigation experience which demonstrate
that they will adequately represent the class in this complaint.
For example, the record demonstrates that in the same week the instant
complaint was filed, the law firm obtained a settlement of $1,000,000
plus attorney's fees for sixteen Black complainants who had filed a
consolidated complaint of a racial discrimination in hiring and promotion
by the agency's Corps of Engineers in Memphis, Tennessee. The Commission
also agrees with the complainants that their brief was timely submitted
to the Administrative Judge. As written, the Administrative Judge's
Order allowed the complainants to file their brief by mail on or
before September 4, 1998, in accordance with 29 C.F.R. � 1614.604(b).
In order to allow this matter to be heard without potential conflicts
due to prior interactions between the parties and the Administrative
Judge, the Commission orders this matter to be assigned to a different
Administrative Judge on remand.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of the class complaint and REMANDS the complaint for processing
as ORDERED below.
ORDER
1. The agency is ORDERED to forward the class complaint file, including
a copy of the class complaint and the Commission's decision on class
certification, to the EEOC's Birmingham, Alabama, District Office,
with a cover letter requesting that the class complaint be assigned
to an Administrative Judge for discovery proceedings and hearing.
The agency's cover letter shall inform the Birmingham District Office that
the Commission's Order requires the class complaint, as certified by
the Commission, to be assigned as soon as possible to an Administrative
Judge other than the Administrative Judge who issued the prior decision.
The request letter shall also inform the Birmingham District Office that
the newly assigned Administrative Judge shall begin the discovery process
under 29 C.F.R. � 1614.204(f) within ten (10) calendar days of the date
the case is assigned to the new Administrative Judge. The agency shall
complete these actions within ten (10) calendar days of the date this
decision becomes final.
2. The agency is ORDERED to notify potential class members (that is,
African-American employees and former employees of the agency's Corps
of Engineers, Waterways Experiment Station, in Vicksburg, Mississippi),
of the Commission's acceptance of the class complaint in accordance with
29 C.F.R. �1614.204(e), as amended by 64 Fed. Reg. 37,644, 37, 658 (1999),
within fifteen (15) calendar days of the date this decision becomes final.
The notice shall contain the law firm's name, mailing address, E-mail
address, telephone number, and facsimile number for the attorney who is
representing the class.
3. The agency shall send to the Compliance Officer referenced below, and
to the attorney who is representing the class, copies of the agency's
class complaint notifications to class members and a copy of the letter
forwarding the complaint file to the EEOC's Birmingham District Office
within fifteen (15) calendar days of the date this decision becomes final.
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 (M1199)
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). 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 (R1199)
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 (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:
February 23, 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 the complainant, the 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.
264 Fed. Reg. 37,644, 37661 (1999) amended 29 C.F.R. � 1614.604(b) but
did not alter the criteria for determining the timeliness of postmarked
documents.