07A10050_r
07-23-2002
Ervin R. Armstrong, et al., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Ervin R. Armstrong, et al. v. Department of the Treasury
07A10050
July 23, 2002
.
Ervin R. Armstrong, et al.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07A10050
Agency No. 00-0019C
Hearing No. 100-AO-7833X
DECISION
Following its February 7, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its final order
that rejected an Administrative Judge's (AJ) decision to certify a class.
ISSUE PRESENTED
Whether the agency's final order rejecting the decision of the AJ to
certify the class was correct.
BACKGROUND
Complainant, a GS-12 Revenue Officer, employed in the agency's Bailey's
Crossroads office in Virginia, filed a formal class EEO complaint with
the agency on August 19, 1999, alleging that the agency engaged in a
pattern and practice of discrimination against African-Americans within
the agency's Virginia/West Virginia District with regard to training,
promotion, details, selection practices, and evaluations in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.<1> With regard to promotions and details,
he states that although African-Americans have greater seniority and
better evaluations, they are continually non-selected by the agency.
Complainant also claims that by being denied training, African-Americans
are not as competitive for promotions. Additionally, complainant alleges
that the agency has a policy that allows the manager and Branch Chief to
select anyone they desire for training and other employment opportunities
without consideration of objective criteria.
The agency forwarded the class complaint for review to an AJ, who
issued a decision on January 2, 2001. At the outset of her decision,
the AJ found that the class complaint was timely filed with the agency
on August 19, 1999, within 15 days after receipt of an August 3, 1999
notice of right to file. Additionally, in her decision, the AJ examined
the requirements for class certification; adequacy of representation,
commonality, typicality and numerosity. The AJ found that complainant
provisionally met the numerosity requirement by identifying six specific
class members and identifying at least 45 additional potential members
who may have been affected by the alleged discriminatory policy.
The AJ noted that the additional potential class members appeared to
be employed in approximately 13 different offices located in Richmond,
Norfolk, and Hampton, Virginia, and in Parkersburg, West Virginia.
With regard to commonality, the AJ noted that the class complaint involved
an across-the-board allegation. The AJ stated that complainant presented
a comparison of the numbers of African-Americans whom allegedly have
been affected by the agency's selection policy for training and policy of
providing assignments and details as compared to Whites. The AJ concluded
that complainant provided sufficient preliminary evidence demonstrating
that the alleged agency policies could have a disproportionate impact
on African-Americans. With regard to typicality, the AJ noted
that complainant provided specific allegations of discrimination
against various class members and has demonstrated a nexus between
his claims and those of other class members with regard to appraisals,
assignments, details, and training. Finally, with regard to adequacy of
representation, the AJ found that based on the fact that complainant's
attorney has over six years of experience in private practice in the
area of employment discrimination and civil rights law and is currently
representing a class of Black farmers in a civil rights class action,
the class has met the requirement of adequacy of representation.
On February 7, 2001, the agency issued a final order deciding not to
implement the AJ's decision. On February 12, 2001, the agency filed the
present appeal.
On appeal, the agency argues that the AJ erred in her findings and
conclusions regarding the numerosity, commonality, and typicality
requirements. With regard to numerosity, the agency notes that
complainant provided specific allegations of discrimination from six
purported class members, all of whom work in the Baileys' Crossroads
office. The agency states that the complainant also provided a six-page
listing of 142 employees in the Collection Division as of December 8,
1998. The agency claims that among the 142 listed, 46 African-American
employees are identified in eight different office locations in Virginia
and one in West Virginia. The agency states that the African-American
employees occupy ten different positions and notes that three of
them are managers. The agency argues that although the AJ found that
complainant provisionally satisfied the requirement of numerosity, she
failed to order that any other discovery or investigation be made so
that numerosity could be finally determined. The agency argues that if
African-American employees in offices other than Baileys Crossroads are
to be part of the class for numerosity reasons, their various claims may
destroy commonality and typicality requirements. The agency argues that
the six employees specifically identified fail to meet numerosity and
argues that the additional 45-46 employees may or may not have issues
to raise as members of the class.
Additionally, the agency argues that the class should not be certified
because the class lacked a common core of facts, and complainant's
claim was not typical to the claims of other members of the class.
Specifically, the agency notes that complainant and the other five named
members have identified at least six different management officials who
were instrumental in ten different alleged discriminatory acts covering
a period form 1990 to 1999. The agency claims that factoring in the
additional 45-46 employees occupying nine different positions in thirteen
other offices under several different managers, leads to a finding that
commonality has not been met. Additionally, the agency states that the
only policy or practice described by complainant is that managers are
allowed to make certain employment decisions without objective criteria.
The agency claims that other than complainant's assertion of fact,
there is no showing that this is the case. The agency argues that, on
the contrary, it produced evidence that many of the issues regarding
selection processes are mandated by provisions of the negotiated
bargaining agreement.
Finally, the agency includes one sentence in footnote in its appellate
brief stating that it �raised a timeliness issue and although [it is]
not addressing it in this brief, does not waive the issue and asks that
it be considered in this appeal.�
In her January 2, 2001 decision, the AJ stated that complainant was issued
two notices of right to file a discrimination complaint on March 24,
1999, and on August 3, 1999.<2> The AJ noted that complainant provided
a copy of the receipt for certified mail, indicating that he mailed the
formal complaint on August 19, 1999 to the agency. The AJ stated that the
receipt submitted by complainant showed that the complaint was received
by the agency's Washington Regional Complaint Center on August 20, 1999.
Thus, the AJ found that the complaint was timely filed. Upon review,
the Commission finds no reason to disturb the AJ's conclusion that the
complaint was timely filed.
EEOC Regulation 29 C.F.R. � 1614.204(a)(2) defines a class complaint.
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. 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).
Numerosity
Although the Commission's requirements for an administrative class
complaint are patterned on the Rule 23 requirements, Commission decisions
in administrative class certification cases should be guided by the fact
that an administrative complainant has not had access to precertification
discovery in the same manner and to the same extent as a Rule 23
plaintiff. See Moten et al. v. Federal Energy Regulatory Commission,
EEOC Request No. 05910504 (December 30, 1991). Moreover, the exact number
of class members need not be shown prior to certification. Id. However,
in the administrative process, as in 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 by the agency's allegedly discriminatory practices
and who, thus, may assert claims. Id. 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. Hines, et al. v. Department
of the Air Force, EEOC Request No. 05940917 (January 29, 1996).
In its final order and brief on appeal, the agency argued that the class
agent failed to satisfy the numerosity requirement because he failed to
specifically name other members of the class aside from himself and five
other members. We agree with the AJ's determination that complainant
established sufficient evidence that he satisfied the numerosity
requirement for class certification. Despite the agency's argument to the
contrary, we remind the agency that when determining whether numerosity
has been met, the class should not be limited to those identified in
the complaint. See Ann M. Garcia, et. al. v. Department of Justice,
EEOC Request No. 05960870 (October 1, 1998). The AJ in this case found
that at least 45 African-Americans employed in the Virginia/West Virginia
District were potentially affected by the agency's alleged discriminatory
practices. This number, which represents those individuals who could
have been affected by the agency's allegedly discriminatory practice,
is sufficient to establish the requisite numerosity.
Commonality and Typicality
Commonality and typicality require that the class agent possess the same
interest and suffer the same injury as the members of the proposed 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). In application, the commonality and typicality prerequisites
tend to merge, and are often indistinguishable. Falcon, 457 U.S. at 157,
n. 13.
In the present complaint, complainant alleges that the agency engaged in
a pattern and practice of discrimination against African-Americans within
the agency's Virginia/West Virginia District with regard to training,
promotion, details, selection practices, and evaluations. He states
that the agency allows the manager and Branch Chief to select anyone
they desire for training and other employment opportunities without
consideration of objective criteria. According to complainant, because
of this agency policy, training, details, promotions were predominantly
awarded to Whites and higher evaluations were given to Whites as opposed
to African-Americans.
The agency notes that considering the additional 45-46 employees plus
the six identified by complainant, the complaint involves a variety
of employment actions, covering nine different positions in thirteen
different offices, under several different managers, and states that this
supports a finding that the class lacks commonality. The agency also
claims that the only policy described by complainant is that managers are
allowed to make certain employment decisions without objective criteria.
The AJ found, however, that sufficient facts supported the existence
of a common practice or policy that allegedly discriminated against
African-American employees with regard to appraisals, assignments,
details, promotions, and training by maintaining a policy that
managers are allowed to make certain employment decisions without
objective criteria. In support of this, the AJ cited evidence provided
by complainant comparing the numbers of African-Americans and Whites
whom allegedly have been affected by the agency's policy for training
and policy of providing assignments and details. Further, the AJ noted
that complainant provided specific allegations of discrimination against
other class members and found that he demonstrated a nexus between his
claims and those of the other class members. Upon review, we find,
as did the AJ, that there was sufficient evidence to satisfy the class
agent's burden of establishing commonality and typicality.
3. Adequacy of Representation
The agency does not dispute that the class is adequately represented.
We agree with the AJ's finding that the class agent presented sufficient
evidence that satisfies the requirement of adequate class representation.
CONCLUSION
Accordingly, the agency's final order is REVERSED and the class complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall continue processing the remanded class complaint
in accordance with 29 C.F.R. � 1614.204(e), et seq. Within 15 days
of the date this decision becomes final, the agency shall notify all
class members of the acceptance of the class complaint as required by
� 1614.204(e). Within 15 days of the date this decision becomes final,
the agency shall request that the Hearings Unit of the appropriate
EEOC District Office continue processing the matter pursuant to �
1614.204(f), et seq. and schedule a hearing pursuant to � 1614.204(h).
The agency is directed to submit a copy of the complaint file to the EEOC
District Office within 15 days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer
at the address set forth herein that the class members have been notified
of the acceptance of the class complaint and that the complaint file
has been submitted to the EEOC District Office. After receiving a
recommended decision from the Administrative Judge, the agency shall
issue a decision in accordance with � 1614.204(j).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 23, 2002
__________________
Date
1The record reveals that prior to October 1,
2000, the agency organized by geographical location. Thus, the Bailey's
Crossroads post of duty was previously known as the Collection Division,
Virginia-West Virginia District, Southeast Region.
2We note that it is unclear from the record as to the exact date
complainant received these notices.