07A20002_r
03-17-2003
Florence Michael, et al., Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Florence Michael, et al. v. Department of the Interior
07A20002
March 17, 2003
.
Florence Michael, et al.,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 07A20002
Agency Nos. LLM-001-C, 1400-713 [702]
Hearing No. 320-A1-8039
DECISION
Following its September 26, 2001 final order, the agency filed the instant
appeal, in which the agency requests the Commission affirm its final order
that rejected the Equal Employment Opportunity Commission (Commission)
Administrative Judge's (AJ) decision to certify the above-captioned
matter as a class complaint.
BACKGROUND
Florence Michael, (DOB 1/12/37), acting as the class agent, filed a class
complaint dated September 1, 2000, alleging that the agency discriminated
against a class of persons on the basis of age, in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Complainant alleged the class consisted of twelve
named and an unknown number of unnamed, similarly situated employees
and former employees, all over the age 40, of the agency's National
Information Resource and Management Center (NIMRC) of the Bureau of Land
Management (BLM), who had received a Management Directed Reassignment
(MDR). Complainant was separated from federal service effective April 24,
2000, when she declined the proposed reassignment of her position from
Denver, Colorado, to the agency's Washington, DC office.
Pursuant to 29 C.F.R. � 1614.204(d), the agency forwarded the complaint
to an EEOC AJ for a determination of whether the complaint should be
accepted and the class certified. By letter dated January 5, 2001,
complainant responded to the AJ's Corrected Order of December 21, 2000,
in which the AJ requested position statements from the parties regarding
certification. In her response, complainant amended the class to include
11 former employees of NIMRC, over the age of 40, who had been subjected
to a reduction in force (RIF). Complainant claimed that the original
12 named class members received notices of involuntary reassignments in
February 2000, which occurred just before the 11 potential class members
received notices of the RIF in May 2000. Both actions, she alleged,
were part of a single plan to eliminate older BLM workers.
Thereafter, the AJ certified the class complaint, finding it satisfied
all of the requirements for certification, as set forth in 29 C.F.R. �
1614.204(a)(2). In his decision dated August 14, 2001, the AJ defined
the class as composed of all employees over the age of 40, who received
directed reassignments or whose positions were eliminated under the
2000 RIF. The AJ noted that while the exact number of persons affected
by the alleged discriminatory actions was uncertain, the complaint,
as supplemented by the January 5, 2001 response, alleged a nationwide
policy of discrimination affecting the 23 named class members, plus as
many as 50 or 60 additional BLM employees and ex-employees in Arizona,
New Mexico, Utah, and Montana, who have received similar treatment on
account of their age. The AJ found that, for reasons of class size and
geographical dispersion, the numerosity requirement had been satisfied.
Concerning commonality and typicality, the AJ found that the complaint
sufficiently described a common policy or practice with respect
to decreasing the number of older BLM employees. The AJ noted that
the class agent's claims and injuries (involuntary separation and
subjected to an MDR) were sufficiently broad to be typical of the wider
interests of the class. The AJ specifically found that the putative
class members share common factual and legal questions surrounding
whether the agency discriminated against them on the basis of age in
implementing a policy that resulted in employees being either subjected
to a RIF or a directed reassignment. Finally, the AJ found that the
agency did not challenge the adequacy of complainant's representation.
In support of his finding the class's representation to be adequate, the
AJ noted that there was no indication in the record that the class agent
has any interest antagonistic to those of the proposed class members.
On appeal, the agency first noted that if, as complainant requests, the
class is expanded to include the class members described for the first
time in complainant's January 5, 2001 letter, commonality and typicality
may be destroyed. The agency found that because complainant was not
subjected to the May 2000 RIF, the class should not include those who
were terminated or adversely impacted as a result of the RIF. The agency
stated that the class should only consist of those employees over 40
years of age, who, as complainant did, received a notice of directed
reassignment. The agency maintains that the RIF was a separate action,
distinct from the reassignments.
Further, the agency reasons that complainant's vague description
of a group of 50 or 60 similarly situated potential class members
is not specific enough to determine whether their claims satisfy the
requirements for commonality or typicality. At a minimum, employees at
locations outside of Denver would not be assigned to NIMRC; they would
have different supervisors and be assigned to different organizations.
The agency found that except for the original 12 class members and the
11 employees subjected to the RIF, no centralized administration between
the class members exists. The agency claims that other than the class
agent's assertion of fact, there is no showing of any core set of facts
to support the complaint's allegations regarding a discriminatory policy.
The agency maintains that the 12 named class members fail to meet the
numerosity requirement. The agency argues that the claim regarding the
11 employees subjected to the RIF is untimely, because the class agent
first mentioned these potential class members in her January 5, 2001
response. Thus, the agency finds this initial EEO contact is more than
45 days after the effective date of the RIF in July 2000, when the class
members should reasonably have suspected discrimination. Accordingly,
the agency argues the AJ's decision to certify the class was improper.
In rebuttal, the class agent points out that her complaint of September
2000 describes her belief that the class will ultimately include
"additional persons throughout the Bureau who have suffered the same age
discrimination that this group [of named class members] has suffered."
She notes that the EEO counselor's report is replete with notations
concerning both the February 2000 directed reassignments and the
subsequent RIF that were discussed in counseling in May 2000, preceding
the timely filing of the complaint describing the class accordingly. The
class agent concludes that the AJ's determination that the class should be
certified on a national basis was correct and requests the AJ's decision
to certify the class be affirmed.
ANALYSIS and FINDINGS
An individual seeking to gain certification of a class action is required
to sign and file a class complaint which identifies the policy or practice
adversely affecting the class as well as the specific action or matter
affecting the class agent. 29 C.F.R. � 1614.204(c)(1). The class complaint
must present allegations that the class is so numerous that a consolidated
complaint of the members of the class is impractical; that there are
questions of fact common to the class; that the claims of the agent of
the class are typical of the claims of the class; and that 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).
Commonality and Typicality
In addressing whether a class complaint warrants certification, it
is important to first resolve the requirements of commonality and
typicality in order to "determine the appropriate parameters and the
size of the membership of the resulting class." Fusilier v. Department
of the Treasury, EEOC Appeal No. 01A14312 (Feb. 22, 2002) (citing Moten
v. Federal Energy Regulatory Comm'n, EEOC Request No. 05960233 (Apr. 8,
1997)). 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). Typicality exists
where the class agent demonstrates some "nexus" with the claims of the
class, such as similarity in the conditions of employment and similarity
in the alleged discrimination affecting the agent and the class. Thompson
v. United States Postal Serv., EEOC Appeal No. 01A03195 (Mar. 22, 2001).
We find that the necessary nexus exists in the instant case to establish
common questions of fact between the class agent, and the named and
unnamed putative class members. Namely, the agency's decision in 2000
to conduct a RIF less than a month after separation of those employees
who chose to decline management's directed reassignments indicates
that both actions can be viewed as components of a common practice or
policy, which, the class agent alleges, was designed to reduce the
overall number of older BLM workers. Furthermore, we find that the
class agent (a former BLM employee, over 40, who received an MDR and
was subsequently terminated), and the putative class (other present
or former BLM employees, over 40, who were either separated through a
RIF or subjected to an MDR), have the same interest and have suffered
the same injury under the class agent's theory. We conclude that the
AJ correctly found that the purported class meets the prerequisites of
commonality and typicality.
Numerosity
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. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993); Harris
v. United States Postal Service, EEOC Appeal No. 01994220 (March 14,
2002) (citations omitted); cf. Risner v. United States Postal Service,
EEOC Appeal No. 01994323 (September 13, 2002) (noting that courts
have been reluctant to certify classes below approximately 50 members)
(citation omitted).
In the present case, the AJ considered that complainant sought to include
in the class other employees she learned were also subjected to a common
discriminatory scheme. In the class agent's January 5, 2001 position
statement, she named an additional eleven employees who were either
terminated or adversely affected by the May 2000 RIF. The class agent
named another five employees who were subjected to age discrimination when
their careers were adversely affected by "special assignments" or details
that occurred during approximately the same time frame. Significantly,
the class agent stated her belief that other unnamed employees or former
employees, as many as 50 or 60, suffered similar treatment during 2000,
at agency locations in Arizona, New Mexico, Utah, and Montana. The AJ
found that the class agent's information was sufficient to satisfy the
numerosity requirements.
We agree with the AJ, bearing in mind that even after a class
is certified, the Administrative Judge remains free to modify the
certification order or dismiss the class complaint in light of subsequent
developments. Hines v. Department of the Air Force, EEOC Request
No. 05940917 (January 29, 1996).
Adequacy of Representation
We agree with the AJ's finding that the class agent presented sufficient
evidence to satisfy the requirement of adequate class representation.
We find that the class agent's injuries (subjected to an MDR and
involuntary separation) and interests are not adverse to the proposed
class members' interests. Furthermore, we find that it appears that
the class agent has secured experienced and adequate counsel to pursue
the class complaint.
Timeliness
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
We find that the record is sufficient to support the AJ's finding that the
class agent did not reasonably suspect discrimination until 45 days of the
effective date of the directed reassignment (April 23, 2000) following
receipt of the February 2, 2000 notice. Complainant timely initiated
EEO Counseling on March 17, 2000. The record shows that complainant
subsequently amended her September 1, 2000 complaint to include
additional class members when she reasonably suspected discrimination
in connection with other adverse personnel actions that occurred in the
same or similar manner.<1> Therefore, we find that complainant timely
raised the class issues, including the RIFs, when she reasonably became
aware of the class implications. See generally 29 C.F.R. � 1614.204(b)
(�A complainant may move for class certification at any reasonable point
in the process when it becomes apparent that there are class implications
to the claim raised in an individual complaint.�).
CONCLUSION
The Commission finds that the agency improperly rejected the AJ's
decision to certify the class. Accordingly, we REVERSE the agency's
final decision and REMAND this matter for further processing in accordance
with the Order herein.
ORDER
The agency shall continue processing the remanded class complaint in
accordance with 29 C.F.R. � 1614.204(e), et seq. Within 15 calendar
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 calendar 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. The agency shall submit a copy of the complaint
file to the EEOC District Office within 15 calendar 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,
that a request has been sent to the Hearings Unit of the appropriate
EEOC District Office for continued processing of the matter, and that
the complaint file has been submitted to the EEOC District Office.
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
March 17, 2003
__________________
Date
1Additional named class members received notice of an agency RIF,
effective July 7, 2000, by letters dated on or about May 2, 2000.