0120054412
02-23-2007
Edward A. Bent, et al., Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Edward A. Bent, et al.,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01200544121
Hearing No. 100-2004-00559X
Agency No. DOS-F-026-04
DECISION
On June 15, 2005, complainant, as class agent, filed an appeal regarding
the agency's May 16, 2005 final order dismissing his class complaint.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
an applicant for a Foreign Service Officer position with the agency.
Complainant undertook the Foreign Service Oral Assessment on October
31, 2003, in San Francisco, California. Complainant filed an EEO
class complaint with the agency dated February 17, 2004, claiming that
applicants, forty years of age or older, have been discriminated against
when they were non-selected for Foreign Service Officer positions by the
agency, in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant's complaint was forwarded to the EEOC Washington Field
Office for a decision on certification. The Administrative Judge (AJ)
issued a decision denying certification of the class.2 In his decision,
the AJ found that complainant failed to establish three of the four
prerequisites for class certification: commonality, typicality, and
adequacy of representation. The AJ did not specifically address whether
the class established numerosity.
With regard to commonality, the AJ noted that although complainant
alleged that he was asked inappropriate age related questions during
his oral assessment, he failed to identify even one
additional candidate who was asked the same or similar questions during
their oral assessment. The AJ also noted that although complainant
indicated that he knew other candidates who were subjected to age
discrimination, he did not provide any supporting affidavits containing
anecdotal testimony of other candidates that would tend to suggest
that a class of persons were discriminated against in the same manner.
With respect to his claim of biased testing procedures and recruitment
practices, the AJ found complainant's claim lacked specificity and detail.
The AJ noted that despite his allegation that the written portion of the
oral assessment was often times re-circulated to certain unspecified
candidates, complainant provided no additional information to infer
that the agency actually maintains the alleged practice or that it is an
on-going practice. Additionally, the AJ noted that no information was
provided from which it can be inferred that the practice is utilized
nationally, regionally, or locally at one of the agency's offices.
The AJ also noted that, with respect to complainant's claim that the
agency only recruited candidates at college campuses, no information
was provided from which it could be inferred that the agency actually
maintains the alleged practice. Thus, the AJ found complainant has not
provided sufficient information to demonstrate that there is uniformity
among the proposed class members and that the claims of class members
involve common issues of fact.
With regard to typicality, the AJ found that other than bare conclusory
allegations, complainant failed to identify any of the proposed class
members affected by the alleged discriminatory practices and he has not
provided any affidavits containing anecdotal testimony from which it can
be inferred that there are other applicants that were adversely affected
by the alleged biased testing procedures or recruitment practices. Thus,
the AJ found complainant has not demonstrated that he has suffered an
injury that is typical of the proposed class members.
Further, the AJ found complainant informed the Commission in July 2004
that he was interviewing attorneys who specialized in discrimination
and class action law and that he had experienced severe health problems
over the last two months. The AJ noted that since that time complainant
has not informed the Commission that he has retained an attorney with
the education and experience necessary to adequately represent the
proposed class. The AJ also recognized that complainant has not provided
information demonstrating that he has previously represented others in
a class complaint or that he possesses the requisite legal training or
knowledge to adequately represent the interests of the class. Thus,
the AJ found complainant did not satisfy the adequacy of representation
requirement.
The agency issued a final order dated May 16, 2005, fully implementing
the AJ's decision. On June 15, 2005, complainant filed an appeal from
the agency's final order. Thereafter, complainant submitted a brief in
support of his appeal on July 21, 2005.
The agency submitted its Agency's Brief in Opposition to Class Agent's
Appeal on August 19, 2005. The agency argued that complainant's brief
in support of his appeal was untimely filed. Additionally, the agency
stated that the AJ correctly determined that complainant failed to
establish commonality, typicality, and adequacy of representation.
Further, the agency claimed that complainant also failed to satisfy the
numerosity prerequisite for class certification.
Specifically, the agency noted that complainant failed to articulate
exactly whom the class would be comprised of, and has not shown
that individual complaints or a consolidated complaint of members is
impractical.
On August 30, 2005, complainant submitted a Request to be Represented by
a Former California Attorney, naming Representative X as his designated
representative. Additionally, complainant submitted a September 3,
2005 Reply to Agency's Brief in Opposition to Class Agent's Appeal.
The agency submitted a September 20, 2005 Motion to strike the class
agent's reply. Thereafter, complainant filed a September 30, 2005 reply
to the agency's Motion.
ANALYSIS AND FINDINGS
At the outset, we will address the agency's argument that complainant's
brief was untimely filed.
EEOC Regulation 29 C.F.R. � 1614.403(d) provides that any statement or
brief on behalf of a complainant in support of an appeal must be submitted
to the Office of Federal Operations within 30 days of filing the notice
of appeal. Thus, we find complainant's July 21, 2005 brief, complainant's
September 3, 2005 Reply to Agency's Brief, and complainant's September 30,
2005 Reply to Agency's Motion to Strike were filed beyond the applicable
limitations period and they will not be considered in this appeal.
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 of the class 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). A class complaint may be dismissed
if it does not meet each of these four requirements, or for any of the
procedural grounds for dismissal set forth in 29 C.F.R. � 1614.107.
29 C.F.R. � 1614.204(d)(2).
The Commission finds that complainant failed to establish commonality.
The purpose of the commonality and typicality requirements is to ensure
that class agents possess the same interests and suffer the same injury
as the members of the proposed class. General Tel. Co. of the Southwest
v. Falcon, 457 U.S. 147, 156-57 (1982). The putative class agent must
establish an evidentiary basis from which one could reasonably infer
the operation of an overriding policy or practice of discrimination.
Garcia v. Department of the Interior, EEOC Appeal No. 07A10107 (May
8, 2003). Generally, this can be accomplished through allegations of
specific incidents of discrimination, supporting affidavits containing
anecdotal testimony from other employees who were allegedly discriminated
against in the same manner as the class agent, and evidence of specific
adverse actions taken. Id.; Belser v. Department of the Army, EEOC
Appeal No. 01A05565 (December 6, 2001) (citing Mastren v. United
States Postal Service, EEOC Request No. 05930253 (October 27, 1993)).
Conclusory allegations, standing alone, do not show commonality. Garcia,
EEOC Appeal No. 07A10107 (citing Mastren, EEOC Request No. 05930253).
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. Garcia, EEOC Appeal
No. 07A10107 (citing Mastren, EEOC Request No. 05930253).
In the present case, the class agent's request for class certification
fails because the class agent did not show that common questions exist
among the purported class members; therefore, the class complaint did
not satisfy the commonality requirement. The class complaint consists
of conclusory statements made by complainant that the oral assessment
was biased. The class complaint fails to identify any discriminatory
policy or practice which has the effect of discriminating against the
class as a whole. With regard to the assertion that the agency provides
the same written portion of the oral assessment test to other unspecified
candidates, we note complainant failed to show that the recirculation
of the written portion of the oral assessment is a practice commonly
used by the agency rather than an isolated occurrence. Finally, with
respect to complainant's argument that it appeared that the agency only
recruited candidates at college campuses, we find complainant provided no
information that the agency maintains the alleged practice. Further,
we note that in response to the AJ's Order to Produce Information,
complainant acknowledged that the agency's recruiting and hiring practices
are flawed and affect both the candidates who were eliminated from
the hiring process as well as candidates given a conditional offer.
Complainant notes that he elected to file the complaint as a class
complaint for all candidates over the age of 40; however, he noted that
in the future he may request permission to amend the complaint to include
all candidates regardless of age. Upon review, we find that other than
age, the class agent has failed to identify facts common to the class
as a whole.
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.
See Kennedy v. National Aeronautics and Space Administration, EEOC
Appeal No. 01993626 (April 26, 2001) (citations omitted); Contreras
v. Department of the Treasury, EEOC Appeal No. 01961671 (May 11, 1998)
(citation omitted), req. for recons. den., EEOC Request No. 05980856
(October 22, 1999). In the present case we note that complainant stated
that the agency's recruiting policies affect both those who passed and
failed the Oral Assessment. As complainant failed the Oral Assessment,
we find his claim is not typical of the claims of those who passed the
assessment. Thus, as complainant fails to show substantially the same
interest as those in the purported class, we find he has not satisfied
the typicality prerequisite.
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. See 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); Mastren v. United States Postal Service, EEOC Request
No. 05930253 (October 27, 1993). The Commission finds that the instant
class complaint fails to meet the numerosity requirement. Complainant
provides a single electronic mail message from an unidentified individual
who complainant states was another candidate in his group when he applied
for a position with the agency. Complainant does not give an approximate
number for the purported class and does not present evidence to establish
a number which constitutes the class. Further, aside from the electronic
mail message from another candidate in his application group, we find
complainant fails to produce evidence of assertions that it is likely
that a large number of people were also impacted. At best, complainant
identified two members of the purported class. Complainant presents
no evidence showing that it would be impractical to consolidate the two
individual claims. Thus, we find that the class complaint fails to meet
the numerosity requirement set forth in 29 C.F.R. �1614.204(a)(2)(i).
The final requirement is that the class agent or his/her representative
adequately represent the class. To satisfy this criterion, the agent or
representative should have sufficient legal training and experience to
pursue the claim as a class action. This prerequisite requires that the
agent of the class, or, if represented, the representative, will fairly
and adequately protect the interests of the class. It is necessary that
the class agent or the representative demonstrate sufficient ability
to protect the interests of the class so that the claims of the class
members do not fail for reasons other than their merits. In this matter,
the class agent has not demonstrated that he or his representative,
an attorney who complainant describes as having "withdrew from the
[California] State Bar in less than favorable circumstances," could
adequately represent the interests of the class. Neither complainant
nor his representative have indicated that they have any familiarity
with class action litigation. Accordingly, we find complainant failed
to satisfy the adequacy of representation requirement.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED. The agency is reminded
that it must process the individual complaint of discrimination under
subpart A of Part 1614 Regulations or dismiss the individual complaint
pursuant to 29 C.F.R. �1614.107. See 29 C.F.R. �1614.204(d)(7).
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
February 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Although the AJ's decision is not dated, we note that the decision
was faxed to the agency on April 7, 2005.
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01A54412
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507