0120050945
02-09-2007
Fazal Rahman, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Fazal Rahman v. Department of Agriculture
0120050945
2-9-07
.
Fazal Rahman,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120050945<1>
Agency No. USDA-CR-020077
Hearing No. 350-2002-8074X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.<2>
I. ISSUE PRESENTED
The issue presented in the instant case is whether the agency's final
order properly denied class certification to complainant's claim that
the agency discriminated against all racial, religious, and non-European
national origin minorities in the areas of application for employment,
promotion, rating systems and the process of EEO complaints.
II. BACKGROUND
The record reveals that complainant, an applicant for employment at the
agency's Agricultural Research Service, filed several statements with
the agency between April 27, 2001 and October 30, 2001, alleging that the
agency discriminated against him on the bases of race (Asian), national
origin (Asian), age (59), and in reprisal for prior EEO activity when:
(1) he was not selected for the positions of Associate Deputy
Administrator, ES-0241, in Beltsville, Maryland, and Agricultural
Administrator, GS-401-15, in Albany, California;
he was coerced into signing a settlement agreement containing a clause
precluding him from applying for employment with the agency in the
future;
the agency discriminatorily processed prior EEO complaints; and
the agency discriminatorily processed the instant complaint by being
unresponsive and delaying his ability to file.
On October 30, 2001, complainant amended his complaint to include class
allegations that the agency discriminates against all racial, religious,
and non-European national origin minorities when it:
(1) eliminates minority applications for employment and promotion
based on technicalities;
gives preferences to veterans, who tend to be white natural born
citizens;
allows selecting officials to discard the list of most qualified
applicants and re-advertise a position;
utilizes discriminatory rating systems on applications; and
discriminatorily processes EEO complaints.
Following the agency's investigation, the agency referred complainant's
complaints to the Commission on or around May 23, 2002, framing
complainant's class claims as alleging discrimination against all
minorities with regard to non-selections, the denial of upward mobility,
and the agency's use of unlawful settlement agreements that contain a
clause precluding individuals from applying to the agency for future
employment. The Administrative Judge (AJ) issued a decision dismissing
the class complaint pursuant to 29 C.F.R. � 1614.204(d)(7), because
the class complaint generally challenged the legality of settlement
agreements which contain a clause that preclude applications for positions
of future employment with the agency.<3> However, the AJ ordered the
agency to continue processing the portion of the individual complaint
that alleged discriminatory non-selections. The agency issued a final
order on September 18, 2002, indicating that no further processing of
the class complaint or the individual complaint would be undertaken.
Complainant, thereafter, filed an appeal contending that the AJ and
agency failed to address most of the issues raised in his complaint.
On October 30, 2003, the Commission's Office of Federal Operations (OFO)
remanded the class complaint to the AJ so that a class certification
decision could be issued on the issues of non-selections and general
denial of upward mobility. See Rahman v. Dept. of Agriculture, EEOC
Appeal No. 01A24350 (October 30, 2003), req. for recon. denied, EEOC
Request No. 05A40233 (January 6, 2004). However, OFO concurred with
the AJ's dismissal of complainant's claim related to his signing an
allegedly improper settlement agreement with the agency.
Pursuant to the Commission's remand order, the AJ concluded that the
class complaint failed to satisfy the numerosity requirement for class
complaints because complainant failed to provide information that would
show identification of the class members was feasible or that joinder
of individual claims would be impractical. He then concluded that
the class complaint failed to meet the commonality requirement because
complainant failed to provide specific evidence of a nationwide agency
policy or practice that affected both him and the class members in
a discriminatory manner. He found that the complaint failed to meet
the typicality requirement for the same reason. The AJ also found that
complainant could not adequately represent the class because he had not
obtained qualified counsel. However, the AJ again ordered the agency
to resume the processing of complainant's individual complaint.
The agency's final decision (FAD) implemented the AJ's decision denying
certification to the class complaint. The FAD, however, found that
complainant's individual claim of discrimination in the instant case would
be held in abeyance pending the outcome of the Basu class complaint.<4>
On appeal, complainant contends that the AJ and the agency perpetrated
a fraud by construing the class complaint to be against only the
Agricultural Research Service, a sub-part of the agency, rather than the
entire agency. He also reiterated his argument that the agency misframed
the issues in his complaint and restated the policies and practices which
he alleges subject the members of the class to unlawful discrimination.
Furthermore, complainant proposes defining the class in his complaint
according to five subdivisions:
all racial, religious, and non-European national origin minorities
in the U.S. who applied for agency positions between 1985 and 2004,
were qualified for those positions, and were not selected;
all racial, religious, and non-European national origin minority
employees of the agency, in the U.S., as well as worldwide, who were
eligible for promotions between 1985 and 2004, but were not promoted;
all racial, religious, and non-European national origin employees of
the agency, in the U.S., as well as worldwide, who were subjected to
reprisals of various types for their individual and/or collective civil
rights and EEO activities, between 1985 and 2004, e.g. terminations,
transfers, non-renewal of projects, etc.;
all racial, religious, and non-European national origin employees of
the agency, in the U.S., as well as worldwide, who were subjected to
various types of maltreatments and other damaging practices between
1985 and 2004; and
all racial, religious, and non-European national origin minorities
whose EEO and civil rights cases were mishandled and discriminatorily
processed between 1985 and 2004.
Complainant included in the record a report published by the agency's
Civil Rights Action Team in February 1997, which confirms that employees
of the agency contend with a defective EEO process.
Complainant goes on to describe the agency's practices as �demonic.�
Complainant's Brief on Appeal at 2. He also alleged �widespread problems
of mental health in the agency officials, covered up under the facade
of �surface sanity.'� Id. To conclude, complainant stated:
The real question is: What is wrong with this AJ? Is he blind, mentally
retarded, or an extremist in the practice of discrimination and racism?
The answer is that he is all of the above . . . This AJ is the kind
of person who is fully qualified to be a member of the KKK . . . I had
thought that no one could beat the USDA officials in denial of reality
and the ability to deny the existence of the Sun under a clear sky at
mid-day in August. However, I was wrong. This AJ has beaten them all
and has denied the presence of hot, harsh, and brightly shining Sun,
under the clear sky at mid-day in Phoenix, Arizona. Are there any
other officials in EEOC who can even beat him in such extraordinary
capabilities? We will find out.
II. ANALYSIS AND FINDINGS
The AJ's decision will be reviewed de novo. 29 C.F.R. � 1614.405(a).
Because we have previously dismissed complainant's claims regarding
settlement agreements with the agency, we only consider the remainder
of his claim.<5> Initially, the Commission finds that complainant's
class claims of discriminatory non-selection and non-promotion should
not be certified because complainant failed to show that a common
agency policy or practice linked his individual non-selections to the
class's non-selections and non-promotions. Under EEOC regulations,
a class complaint must allege that: (1) the class is so numerous that a
consolidated complaint concerning the individual claims of its members
is impractical; (2) there are questions of fact common to the class;
(3) the class agent's claims are typical of the claims of the class; and
(4) 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). The party seeking class certification bears the burden
of proving that the class complaint meets these requirements. Hernandez
v. Department of the Air Force, EEOC Appeal No. 01A35077 (March 3, 2005)
(citing Mastren v. United States Postal Serv., EEOC Request No. 05930253
(October 27, 1993)). The AJ may reject a class complaint if any of
the prerequisites are not met. See Garcia v. Department of Justice,
EEOC Request No. 05960870 (October 10, 1998) (citing 29 C.F.R. �
1614.204(d)(2)). The AJ retains the authority to redefine a class,
subdivide a class, or dismiss 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).
We decline to certify complainant's class allegations of non-selection
and non-promotion because they fail the commonality requirement.
Commonality requires that there be questions of fact common to the
class. The class agent must, therefore, establish some evidentiary basis
from which one could reasonably infer the operation of an overriding
policy or practice of discrimination. See Mastren v. United States Postal
Serv., EEOC Request No. 05930253 (October 27, 1993). Mere conclusory
allegations, standing alone, do not show commonality. A class agent
must specifically identify facts common to the class. Id. "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." Id. �Across the board"
actions which involve claims of discrimination in different practices
such as hiring, promotion, termination, training, and awards, will not be
certified merely because the class members share the same race, national
origin, or sex. General Telephone Company of the Southwest v. Falcon,
457 U.S. 147 (1982). Complainant fails to explain how his non-selection
involved the same agency policy or practice as the non-selections and
non-promotions of all racial, religious, and non-European national-origin
minorities between 1985 and 2004.
Complainant provides minimal explanation of why he believes his
non-selections for Associate Deputy Administrator in Beltsville, Maryland
and Agricultural Administrator in Albany, California were discriminatory.
He claims he was not selected as Associate Deputy Administrator because
his application was dismissed on a technicality. The agency denied his
application because he failed to provide information in the correct form.
The record, however, contains no evidence to support complainant's
allegation that other class members have not been selected for similar
reasons. Thus, there is no evidence that the agency has the policy
or practice of discriminatorily rejecting minority applications for
employment or promotion on the basis of technicalities. Complainant does
not explain why he believes he was not selected as Associate Deputy
Administrator or Agricultural Administrator, other than alleging the
non-selections occurred because of his race. Further, we concur with the
AJ's finding that complainant failed to provide any information from any
proposed class members regarding their non-selections with the agency.
As such, we concur with the AJ's finding that complainant, as class agent,
has failed to provide sufficient information to determine that the factual
circumstances associated with his non-selections at issue were common to
the circumstances associated with the non-selections of the members of
the proposed class. Thus, there is insufficient evidence to establish
common questions of fact between his individual non-selections and the
policies and practices which he alleges affect the class, namely that
the agency gives preferences to veterans, allows selecting officials to
discard the list of most qualified applicants and readvertise a position,
and utilizes discriminatory rating systems on applications. Complainant's
class allegation of discriminatory non-selection, therefore, fails the
commonality requirement and his class allegation cannot be certified.
Addressing the issue of numerosity, we note that to satisfy the numerosity
prerequisite, the class agent must demonstrate that potential class
members are so numerous that a consolidated complaint by such class
members would be impractical. We also note that on June 29, 2004, the AJ
issued an Acknowledgment and Order informing complainant, as class agent,
that his class complaint lacked specificity and detail and ordered him to
provide an estimate of the total number of individuals within the class.
The AJ found that complainant did not provide the requested information
requested by the AJ, such as estimated number of class members, location
of class members and ease of identifying these members. We concur with
the AJ's finding that other than an allegation that minority employees
nationwide have been adversely affected by the agency's systemic and
lengthy policies of discrimination, complainant, as class agent, did not
provide any information from which an AJ could reasonably conclude that
identification of the class members is feasible and that joinder of the
class members claims would be impractical. AJ's Decision at 5.
Addressing typicality, the Commission concurs with the AJ's finding
that complainant, as class agent, failed to provide any information
regarding the policy or practice which is being applied by the agency
in a nationwide manner which resulted in his non-selection for the
positions at issue. As previously stated by the AJ, complainant failed
to identify the class members nor did he provide information surrounding
the circumstances of their non-selections or denial of upward mobility.
As such, we concur with the AJ's finding that he could not determine
whether the proposed class members suffered the same or similar injury
as complainant, such that they are entitled to bring the same claims.
In addition, we find that complainant failed to provide information
to establish that a single hearing before the AJ could be conducted
addressing complainant's claims, or that a final judgement could be
reached which could resolve the claims of the other class members.
AJ's Decision at 6.
Finally, addressing the adequacy of representation issue regarding class
actions, we concur with the AJ's finding that complainant proffered no
evidence which demonstrates that he possesses the training or experience
necessary to adequately represent the class. In addition, complainant
failed to demonstrate that he hired counsel with the requisite educational
training or experience to represent the interests of the class.
For those reasons, we concur with the AJ's finding that complainant,
as class agent, failed to meet his burden of demonstrating that he can
adequately and fairly represent the interests of the proposed class.
AJ's Decision at 6.
IV. CONCLUSION
Therefore, after careful review of the record, including all arguments
submitted on appeal, we AFFIRM the agency's final order denying
certification to the class complaint.
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 (Q0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
___2/9/07_______________
Date
1Due to a new data system, your case has been
redesignated with the above-referenced appeal number.
2 The Commission notes that complainant previously filed an appeal with
the Office of Federal Operations, challenging the fairness of a class
action settlement agreement (SA) signed by the parties on October 31,
2003, and approved by an EEOC Administrative Judge (AJ) on December
7, 2004. We note that the Commission certified a class referenced
as Basu v. Dept. of Agriculture, Agency No. 000190, consisting of
all current Asian employees of the agency who were eligible for but
had not received promotions, and all Asian persons who had applied for
positions with the agency but had not been selected. In certifying the
class action SA in Basu, the Commission found that complainant was not
a class member entitled to relief pursuant to the subject SA as he was
a former employee of the agency, and thus did not address complainant's
additional contentions that the subject SA was not fair to the class
members. See Rahman v. Dept. of Agriculture, EEOC Appeal No. 01A52527
(May 3, 2005), req. for recon. denied, EEOC Request No. 05A50872 (June
28, 2005). Subsequently, complainant filed a civil action with the
U.S. District Court for the District of Arizona (Phoenix Division),
alleging that the subject SA in Basu was unreasonable, inadequate and
unfair to the overwhelming majority of the class members (docketed
as CV05-3010-PHX-DKD). The Commission notes that the allegations of
discrimination in the instant case are unrelated and distinct from the
allegations made by complainant in his civil action. The civil action
challenged the fairness of the class action SA approved pursuant to the
Basu class action. Complainant specifically alleged that the SA was
unreasonable as it limited available relief only to current Asian/Pacific
Islander employees of the agency. Complainant alleged that he, as a
former employee of the agency, should have been entitled to relief.
3 The AJ found that this issue should be resolved by the Office of
Federal Operations.
4 We note that the AJ in the instant case previously ordered the agency
on two occasions to continue processing the portion of complainant's
individual claim of discrimination (which was distinct from the issues
raised in the Basu class action or complainant's instant class claim)
which alleged discriminatory non-selections in 2001. Although the
issue of complainant's individual claim is not before the Commission in
the instant case, we remind the agency to process the individual claim
regarding the non-selections at issue in an expeditious manner.
5 Complainant alleged on behalf of the class that the agency
discriminatorily processes EEO complaints. Generally speaking, a
complaint shall be dismissed if it �alleges dissatisfaction with the
processing of a previously filed complaint.� 29 C.F.R. � 1614.107(a)(8).
A class complaint on the basis of discriminatory processing inherently
alleges dissatisfaction with the processing of a previously filed
complaint. Class complaints that allege dissatisfaction with the EEO
process are not specifically addressed in the Commission's regulations.
However, the Commission informs complainant and those who wish to bring
future allegations of allegedly improper complaint processing by an
agency on a class-wide basis, in particular those cases where there are
allegations of a policy or practice by the agency in its processing of EEO
complaints that affects a particular group or class of complainants, of
the mechanism by which they can raise these allegations. Consistent with
MD-110, Chapter 5, Part IV, D.3, pp.5-26-27, complainant's allegation that
the agency discriminatorily processed EEO complaints on a class-wide basis
may be raised by submission of a letter to the following EEOC office for
consideration regarding the agency's conduct: Equal Employment Opportunity
Commission, Office of Federal Operations/Federal Sector Programs, 1801 L
Street, N.W., Washington, D.C. 20507. In the present case, complainant's
allegations have been referred to that office for an assessment.