01a40442
09-28-2005
Gerald A. Lewis, et al., Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Gerald A. Lewis, et al. v. Department of Transportation
01A40442
September 28, 2005
.
Gerald A. Lewis, et al.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A40442
Agency No. 5-98-5097
Hearing No. 310-99-5861X
DECISION
On October 22, 2003, complainant as class agent filed an appeal with
this Commission concerning the August 14, 2003 decision by an EEOC
Administrative Judge (AJ) denying certification of the class complaint.<1>
BACKGROUND
The record reveals that complainant, a Procurement Analyst in the
Small and Disadvantaged Business Utilization Program at the agency's
Mike Monroney Aeronautical Center (MMAC), in Oklahoma City, Oklahoma,
filed a formal EEO complaint dated April 17, 1998, alleging that the
agency discriminated against him on the bases of race (African-American)
and reprisal for prior protected EEO activity when: on January 28, 1998,
�Team Coordinators in AMQ-110, 200, and 300 were upgraded and promoted to
FG-1102-14s, while my position which by law provides oversight over the
Procurement function at the FAA Mike Monroney Aeronautical Center (MMAC)
for the Small & Disadvantaged Business Utilization Program was not.�
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Prior to his hearing date, complainant moved
to file a class complaint of discrimination and sought to add twenty
named individuals as intervenors in the class complaint.
In the Motion to Intervene and for Class Certification, complainant
identified the proposed class as all African-American employees, employed
by the Federal Aviation Administration at the Mike Monroney Aeronautical
Center in a permanent position during the period of November 1, 1997,
until the date of certification who were denied competitive and/or
noncompetitive promotion to a GS-5 or higher position. With regard to
numerosity, complainant claimed that the size of the potential class
is in excess of 200 individuals. Complainant noted that there are
currently 250 African-Americans employed at the MMAC and alleged that
180 would have been eligible for promotion to a GS-5 or higher position
during the period in question. Complainant also alleged that more than
20 persons have left the MMAC who would have been class members.
With regard to commonality, complainant alleged that beginning in 1996,
the agency was exempted from many of the requirements of Title 5 of
the United States Code. Complainant claimed that since that time,
the agency has been using its own internal staffing policies to make
competitive and noncompetitive selections. Complainant alleged that
use of these staffing policies have: (a) had a discriminatory impact
upon African-American employees; and (b) have reflected a pattern
and practice of discrimination against African-American employees
which have resulted in African-American employees being denied fair
career advancement. Complainant claims that based on the upgrading
of five Team Leader positions, and the subsequent selection of the
incumbents to those positions, he was denied a promotion. He states
that denial of promotion is based upon an impact and pattern/practice
theory and satisfies the commonality prerequisite for certification.
Complainant requested fifteen days to supplement the motion for class
certification after the AJ had ruled on the Motion to Intervene.
With regard to typicality, complainant alleged that he was denied
a promotion to a GS-14 position because of the application of the
discriminatory personnel policy in question. He stated that his denial
of promotion claim is typical of the claims of the class. Complainant
requested an opportunity from the AJ to submit affidavits from each of
the proposed class agents to demonstrate that their claims are typical
of the class.
With regard to adequacy of representation, complainant claimed that he had
no conflicts with other members of the class. Further, complainant stated
that other proposed class agents have formed a non-profit organization and
have sufficient financial resources to adequately pursue the interests
of the class. With regard to competency of counsel, complainant noted
that his attorney has previously been certified as an appropriate
representative for a class complaint against the Air Force.
Thereafter, on February 12, 2001, the AJ requested additional information
to determine whether certification was appropriate. Specifically,
the AJ requested complainant to:
Identify each specific promotion policy which has a discriminatory
impact on the class members;
Provide specific information identifying questions of law or fact common
to complainant's claims (assuming intervention granted);
Advise whether the MMAC is divided into departments, or units or
divisions of any kind and as to each compartmentalization to identify
the number of class members employed in the department/unit/division
(hereinafter �Unit�);
As to each Unit identified in question 3, set forth the selection
official responsible for making selection decision for the positions
to which the class members were excluded. Also identify the concurring
official in such promotion decisions, if any;
Identify the job titles and descriptions of the potential class members.
Identify which class members were eligible for promotion during the
relevant time period, which class members were promoted during the
relevant time period and which of them were denied a promotion for
which they applied during the relevant time period;
Advise of counsel's educational background and experience in handling
equal employment opportunity complaints. Provide information regarding
the number of cases, the issues and the complexities of the issues that
he has handled in the past EEO complaints.
State the issue to be decided if class action status is certified.
On February 15, 2001, complainant submitted Complainant's Supplement To
Motion For Class Certification. Complainant reiterated the class to be
certified was all African-American employees, employed by the agency
at the MMAC in a permanent position during the period of November 1,
1997, until the date of certification who were denied competitive and/or
non-competitive promotions to a GS-5 or higher position.
In response to the AJ's request to identify a specific promotion policy,
complainant stated that the policy involved in the class complaint was
the application of the agency's promotion policies in effect since April
1996. Complainant noted that in April 1996, the FAA adopted the FAA
Personnel Management System (FPMS) and Personnel Reform Implementation
Bulletins (PRIB) which he claims gave the local employing agency so
much �flexibility� that they were completely subjective and without any
meaningful standards. Complainant claimed these promotional policies
permit �unfettered subjectivity� throughout the promotion process.
For example, complainant claimed as a result of these policies the Line of
Business (LOB) determines the qualifications, the scope of recruitment,
how to evaluate minimum qualifications, whether to apply selective
factors or to simply refer everyone for selection, whether and who to
interview, and what standards to use in making the ultimate selection.
Further, complainant notes the LOB or selecting official is subject to
oversight by the servicing Human Resources Department.
Complainant also noted in 1999, the agency adopted an FAA Human Resources
Manual and implementing Human Resources Operating Instructions (HROI)
which failed to eliminate the subjectivity which already existed.
Complainant stated as a result, within their own Lines of Business,
selecting officials have the authority to determine whether permanent
internal assignments will be filled competitively or non-competitively,
the method of identifying or soliciting candidates, including the areas of
consideration and, if competitive procedures are used, whether candidates
should be ranked numerically, grouped into well qualified and qualified
or both, which he claims has resulted in a disparate impact on class
members. Complainant claimed that the policies described eliminate time
in grade requirements, allows supervisors to rewrite job qualifications,
and allows the supervisors to avoid qualification requirements by the
use of temporary assignments.
As evidence of his disparate impact claim, complainant listed the
organizational units within the agency and identified the percentage of
African-Americans in each location, ranging from 0% to 20%. Additionally,
complainant submitted affidavits from eighteen purported class members
describing their experiences in obtaining promotions at the agency.
These affidavits detail non-selections in the various organizational
units of the agency and contain allegations of, among other things,
pre-selection, instances where complainants were non-selected in favor
of people whom they trained, and interviewing irregularities. Further,
complainant revises his estimate of class members to 330 potential
members.
In the Agency's Motion and Memorandum in Opposition to Complainant's
Motion for Class Certification, the agency noted that there are over
twenty organizations located at the MMAC. The agency stated that only
nine of these organizations report directly to the Director of the
Center and stated that the remaining organizations either directly
report to program offices in FAA Headquarters in Washington, D.C. or
report directly to the Administrator of the FAA.
The agency argued that the class complaint should be dismissed for
procedural defects. First, the agency stated that complainant and
the proposed class agents have failed to identify the agency practice,
policy, or procedure which allegedly is discriminatory. The agency noted
that complainant has identified the following promotion policies which he
alleges are subjective: (1) Paragraphs 8 (permanent internal assignments),
9 (temporary internal assignments), and 10 (promotion qualifications) of
Chapter 1 of FPMS; (2) PRIBs 19, 21, and 22; and (3) HROI, Chapter 1, EMP
1.14 (permanent internal assignments), 1.7 (qualification requirements),
and 1.8 (interview policy). The agency stated that it appears complainant
is attempting to require the agency to defend every policy decision
regarding promotions instead of identifying specific practices associated
with the promotion process that he believes have resulted in a disparate
impact on African-American employees at the MMAC. The agency argued that
certification must be denied or complainant must be required to provide
a more definitive statement regarding the challenged agency practice.
Second, the agency argued that complainant unduly delayed in raising class
complaint allegations. The agency stated that although complainant knew
that his individual complaint had class implications prior to the filing
of his individual complaint in February 1998, he waited until two years
after filing his individual complaint to seek to represent the class.
Third, the agency argued that allegations relating to the implementation
of the FPMS or the FAA's personnel reform and the alleged subjectivity
of personnel reform are untimely. Specifically, the agency claimed that
all allegations concerning personnel reform below the FG-13 grade level
are untimely.
The agency also argued that complainant and proposed class agents
lack standing to maintain the class complaint as defined. The agency
noted that neither complainant nor the proposed agents are employed at
a grade level below a FG/FW-7 or have alleged they were discriminated
against because they were non-selected for a position below the FG/FW-7
grade level and thus, the agency argued that they do not have standing
to represent individuals below the FG/FW-7 grade level. The agency
also claimed that none of the proposed class agents have alleged
that they were discriminated against because of the FPMS or any alleged
subjectivity with regard to the FAA's promotion practices and thus, argued
that they lack standing to represent a class of individuals seeking to
raise such allegations. Further, the agency stated that none of the
proposed class agents have alleged that they have been harmed by the
same promotion practice.
Fifth, the agency argued that complainant's and the proposed class agents'
individual complaints are not like or related to the class complaint.
The agency noted that complainant seeks an upgrade of the SADBUS position
that he encumbers, while the class complaint concerns promotions,
transfers, and or reassignments to positions.
Finally, the agency argued that complainant and the proposed class
agents have failed to satisfy the prerequisites necessary to maintain
a class complaint. With regard to commonality, the agency stated that
complainant's complaint focuses on his claim that several Team Coordinator
positions were upgraded, but his SADBUS position was not and that he
receives lower pay than his SADBUS counterparts. However, the agency
noted that the class complaint concerns non-selections for various
positions. Additionally, the agency noted that it is undisputed that
complainant and the proposed class agents hold positions in different
occupational series, encumber positions in different offices, and
report to different first line supervisors. The agency noted there
is no centralized decision-maker with regard to promotions at MMAC.
The agency stated that the Human Resources Department has no involvement
or oversight authority regarding the selection process used by the
different organizations within the MMAC. The agency averred that the
first level supervisor in one office has no involvement in the selections
made by the first level supervisor in another office. The agency also
stated that individual promotion decisions have not been significantly
impacted by personnel reform.
With regard to typicality, the agency argued that complainant has
not alleged that he suffered discrimination based on job assignments,
reassignment, grade level upon being hired, a delay in promotion, or a
competitive or non-competitive promotion. Thus, the agency determined
that complainant has failed to demonstrate that his claim is typical of
the class. Further, the agency argued that the claims of the proposed
class agents are not typical of each other or to those of complainant.
Specifically, the agency noted that the proposed class agents and
complainant work in different offices, at different grades, in different
occupations, and for different supervisors. The agency characterized the
affidavits produced by the proposed class agents as containing random
instances of alleged discrimination regarding different practices.
The agency argued that complainant and the proposed class agents failed
to show that there was any subjectivity in the agency's practices.
With regard to numerosity, the agency found complainant failed to
present evidence to substantiate his claim that the class consists of 330
employees. The agency noted that the only evidence introduced regarding
the class size is the identity of 20 individuals whom complainant named
as seeking class agent status. The agency claimed that only eleven of
the named purported class agents submitted an affidavit. The agency
noted that all of the these individuals live in the same geographic
location and already have been identified. Thus, the agency argued that
the class was too small to satisfy numerosity.
With regard to adequacy of representation, the agency argued that
since the allegations raised by the purported class representatives
are subjected to multiple defenses based on different burdens of proof
associated with different allegations, the class fails to meet the
adequacy of representation requirement.<2>
In an August 12, 2003 decision, the AJ denied complainant's motion
to add twenty named individuals as intervenors in the subject class
complaint. However, the AJ noted that the information regarding the
twenty named individuals was important to the question of certification,
and considered such information in his decision. The AJ noted that
complainant sought class certification of a class of African-American
employees, employed at the FAA MMAC in a permanent position during the
period of November 1, 1997, until the date of certification who were
denied competitive and/or noncompetitive promotion to a GS-5 or higher
position. The AJ recognized that in support of his position that as a
result of the unrestricted discretion and undue subjectivity incorporated
in its process, the agency's promotion process has a disparate impact
upon African-Americans, complainant provided affidavits from eighteen
individual African-Americans who have not been successful in obtaining
promotions at the facility employing more than 3,000 individuals.
The AJ noted that complainant cited eighteen individuals in five
different divisions, each of which had its own selecting official(s)
who might use one or more �unrestricted discretion[ary] choices] and
[make] undue subjectivity [decisions] incorporated into the process.�
The AJ noted that although complainant concedes that while each division
at the facility has separate selecting officials, he claimed that all are
subject to oversight by the central servicing Human Resources Department
which provides guidelines for all the divisions. The AJ also noted
that in his supplement to the motion for certification, he revised his
estimate of the class from 200 individuals to over 330 individuals.
The AJ stated that in its response to complainant's response to the
request for further information, the agency points out the differences
in the experiences among the proposed class agents and information
regarding the use of standards by the agency. The AJ stated it is clear
that the selection process is contained within each selecting group and
is not centralized.
With regard to commonality, the AJ found, �[T]he proposition [which
is the class allegation of nonselections] is supported by affidavits
of individuals throughout different divisions where the assertion of
disparate impact caused by the subjectivity provided by [complainant's]
promotion policies appears, at this stage, to be supported.� However, the
AJ found that complainant brought his individual complaint not because he
was not selected or promoted by the agency using the subjective policies
of its promotion actions, but because certain job positions within his
directorate were reclassified to a higher grade and his was not. The AJ
noted the upgrading of positions was not part of the process sought to
be challenged as part of the subject class complaint. Furthermore, the
AJ noted that many of the proposed intervenors have filed and may have
already had adjudicated EEO claims challenging their own non-selection for
certain positions.<3> The AJ also stated that others have not indicated
that they applied for promotion and some have failed to point out that
some of the positions for which they seek promotion are encumbered by
African-Americans.
In analyzing typicality, the AJ found that the analysis of whether or
not complainant's position should have been upgraded will be different
from the analysis pertinent to a non-selection and thus, concluded that
complainant's claims are not typical of the class.
With regard to adequacy of representation, the AJ found the class
representative to be highly educated and very experienced in representing
complainants in employment discrimination cases. Thus, the AJ found
the class representative sufficiently capable to adequately represent
the interests of the class. The AJ noted, however, that if the present
class representative �is not available to represent the Class Agent
in any appeal of this decision and a new representative is selected,
such representative will need to qualify as an adequate representative
if the claim is eventually certified as a class action.�
Finally, with regard to numerosity, the AJ noted that complainant and the
record identifies the class of consisting of at least 330 individuals.
The AJ found the complaint satisfied the numerosity requirement.
When the agency failed to issue a final decision within forty days of the
AJ's decision, complainant filed the present appeal. Complainant argues
that the AJ based his decision to deny certification on the erroneous
belief that complainant's personal individual discrimination claim
did not include a claim of non-promotion. Complainant states he was
passed over for five promotional openings to a GS-14 in January 1998.
Complainant notes that in January 1998, the Office of Acquisition
Services (AMQ) �upgraded� several positions from Grade 13 to Grade 14.
Complainant explained that after reclassifying the positions, the agency
then selected individuals to fill the newly-upgraded positions in a
competitive process. Complainant noted that he was on the list of best
qualified candidates for five of the positions; however, the promotions
were given uniformly to White employees. Complainant claims that the
AJ overlooked the competitive promotions and erroneously concluded that
complainant was only challenging the upgrade decision itself.
Complainant reiterates his claim that the FAA's Personnel Management
System implemented in April 1996, encouraged the agency to develop a
personnel system that provides for greater flexibility in the personnel
system. Complainant states that the resulting system incorporated
such extreme �flexibility� that it resulted in discrimination against
African-Americans. Complainant cites the FPMS provision eliminating
time in grade requirements other than qualifications requirements, for
promotion of FAA employees. He also references PRIB 022 which he states
gives selecting officials the authority to create their own minimum
qualifications for positions. Complainant notes the agency's Human
Resource Policy Manual states that the agency's goal is to �ensure that
the program affords appointing authorities flexibility to manage their own
promotion programs.� Complainant claims the agency's personnel system
permits subjectivity in promotion decisions which has led to a pattern
of discrimination against African-American employees in the context of
non-competitive and competitive promotion opportunities. Complainant
claims that statistical evidence and the affidavits of proposed class
members support this claim. Additionally, complainant argues that the
AJ improperly excluded the intervention of twenty additional class agents.
Finally, complainant claims that the class complaint satisfies the
prerequisites for certification. Complainant claims his non-promotion
claim is common and typical of the class's overall claim of non-promotion.
Specifically, complainant claims that the agency's personnel system,
as coordinated by the Office of Human Resource Management, has resulted
in African-Americans being regularly non-promoted. With regard to
numerosity, complainant notes that the proposed class comprises more
than 300 employees. Further, complainant states that adequacy of
representation has been satisfied, noting that his counsel retained
on appeal has represented plaintiffs in numerous class actions both in
federal court and before the Commission. Specifically, complainant notes
that the present law firm he retained is currently representing certified
classes before the Commission in Boord v. Department of Justice, Dunford
v. Department of Justice, and Flournoy v. NASA, EEOC Case No. 120-A201267.
Further, he notes that the firm also settled an EEOC class complaint
in Burden v. Social Security Admin., EEOC Case Nos. 120-99-6378X;
120-996370X; 120-99-6380X.
In response to complainant's appeal, the agency argues that complainant's
original complaint was filed regarding the failure of the agency to
upgrade his position. The agency states that the AJ did not mistakenly
overlook a claim of five non-selections. Additionally, the agency
maintains that complainant's claim regarding the flexibilities under FPMS
are in error in two ways. First, the agency argues that several of the
flexibilities criticized existed prior to the personnel reform in 1996.
For example, the agency states that prior to personnel reform, selecting
officials had the authority to define the area of consideration from which
to recruit, had the discretion to determine whether to interview all
or none of the candidates, and had the discretion to determine minimum
qualifications for positions to address the needs of the locality in
which the position was located. Second, the agency states that while
FPMS does provide greater flexibility with respect to time-in-grade
requirements, qualification requirements for promotion did not change
and a selecting official could not change such standards without prior
approval. The agency also claims that the FPMS reform resulted in greater
flexibilities in hiring related to external recruitment and selection
and not to non-competitive or competitive promotions. The agency also
states that the FPMS has not been followed uniformly at the MMAC, noting
that in some organizations, interviews are most always conducted, while
in other organizations, whether interviews are conducted varies with
the circumstances.
The agency argues that the only commonality among complainant and
the claims of the proposed class agents is that none of them in their
individual claims allege that the FPMS has resulted in discrimination
against them personally or in a common pattern or practice of
discrimination against African-American employees at the MMAC. The agency
notes that complainant and the twenty other purported class agents are
assigned to five different organizations with different supervisors, are
employed in different job series, at different pay bands or salary grades,
and have different work histories, experiences, and qualifications.
The agency argues the class complaint fails to satisfy commonality.
The agency states that even if complainant had raised a claim of
non-promotion, there are no common facts between complainant's claim and
the purported class agents. The agency states that the complainant and
the proposed class agents do not share a common supervisor, do not work
in the same offices, are employed in different job series at different
pay bands/salary grades, and have different work histories, experiences,
and qualifications. The agency claims that no evidence has been proffered
to demonstrate that complainant or the proposed class members were
qualified for the promotions allegedly sought. The agency argues that
the differences in complainant's and the proposed class agents' conditions
of employment and work experience become relevant when addressing issues
of intentional discrimination associated with non-selections because each
employee will have to demonstrate that she/he applied for a position; was
qualified for the position; was not selected for the position; someone
similarly situated but outside his/her protected group was selected for
the position; and that his/her non-selection would not have occurred but
for his/her membership in a protected group. Moreover, the agency notes
that each line of business is autonomous with regard to the selection
process, and there is no centralized method for selecting individuals
for promotion. More precisely, the agency states that the Office of
Human Resources has no involvement or oversight authority regarding the
selection process used by the different organizations within the MMAC.
The agency also states that the manner in which one office implements the
FPMS may change depending on the needs of the individual organization
and the selection official, which is consistent with how the process
worked prior to personnel reform. The agency argues that complainant
failed to produce evidence demonstrating that the promotion process is
dominated by unfettered discretion or subjectivity.
The agency also claims that complainant failed to establish typicality.
The agency points out that the claims of each of the proposed class agents
are not typical of each other or to those of complainant. The agency
notes that some of the proposed class agents were promoted between 1998
and the present, while others removed themselves from consideration for
promotional positions. Moreover, the agency states that complainant
and the proposed class agents have failed to produce evidence that there
is complete unfettered subjectivity in the promotion process, let alone
significantly more than had existed prior to personnel reform. Instead,
the agency argues that the evidence suggests that the claims raised show
specific actions taken by individual supervisors.
The agency argues that allegations relating to the implementation of the
FPMS or the FAA's personnel reform are untimely and must be dismissed.
Specifically, the agency states that all allegations concerning personnel
reform, the alleged subjectivity in promotions that occur within the
MMAC, and promotions for positions below the FG-11 grade are untimely.
The agency states that when complainant initially contacted an EEO
Counselor, he never raised the issue of competitive and non-competitive
promotions being the product of subjectivity or being the result of the
implementation of the FAA's personnel system.
The agency also claims that complainant's allegation of failure to
upgrade is not like or related to his allegation of non-promotion,
and argues his individual complaint is not like or related to the class
complaint and he cannot represent the proposed class.
Further, the agency argues that complainant and the proposed class
agents have failed to satisfy the prerequisites to maintaining a class
complaint. Specifically, the agency states that complainant and the
proposed class agents have presented flawed statistical evidence which
it claims does not demonstrate a pattern and practice of intentional
race discrimination. The agency notes that the statistical evidence
submitted failed to indicate whether the promotions that purported
class members were challenging were restricted to internal or external
candidates, whether the area of consideration was national or restricted
to the commuting area, or whether the positions to which they applied
were filled competitively or non-competitively. The agency also claims
that purported class members failed to identify which specific practice
regarding the agency's decentralized promotion process caused the alleged
representational imbalance at the MMAC. Moreover, the agency states that
the anecdotal statements from complainant and proposed class agents do not
establish a causal connection between a specific practice and the alleged
statistical imbalance and do not support an inference of there being a
uniformly implemented, discriminatory standard operating procedure.
ANALYSIS AND FINDINGS
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.
See 29 C.F.R. � 1614.204(d)(2).
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).
Although the claims need not be identical, typicality requires that
the class agent's claims must be sufficiently typical to encompass the
general claims of the class members so that it will be fair to bind the
class members by what happens with the agent's claims. Conanan v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01952486 (January 13, 1998)
(citing Falcon, 457 U.S. at 156). The overriding typicality principle
is that the interests of the class members must be fairly encompassed
within the class agent's claim. Falcon, 457 U.S. at 159, n.15; 160.
At the outset we find no basis to disturb the AJ's decision to deny
the twenty named proposed class agents request to intervene in the
class complaint. We note that although the AJ denied the twenty named
individuals intervention as class agents, he properly considered their
affidavits and statements in support of complainant's motion for class
certification. Therefore, we will address the propriety of the AJ's
decision denying certification. In his decision, the AJ recognized
that complainant's claim that African-American employees at the MMAC
during the relevant time were denied competitive and/or non-competitive
promotion to a GS-5 or higher position due to the disparate impact of
subjective promotion practices was supported by the affidavits provided.
However, the AJ found commonality was not satisfied because complainant's
individual complaint focused on the failure of his job position to be
reclassified to a higher grade while other positions were upgraded.
The AJ noted that the upgrading of positions was not sought to be
challenged as part of the class complaint.
We note that in the EEO Counselor's Report dated April 27, 1998, for
complainant's individual complaint, the counselor states that complainant
believed he was discriminated against in relation to �the non selection
to a GS-1102-14 team coordinator position, by AMQ-1 and AMQ-100.� The
report notes that on February 17, 1998, complainant initiated counselor
contact alleging that on February 17, 1998, �he was not selected to
the position of GS-1102-14 because the selection process was biased
and that the reorganization diminishes his position of Small Business
Utilization Program oversight authority.� Further, the report also notes
that the counselor interviewed Person A, Manager, AMQ-100, to discuss
complainant's claim of �non-selection.� The counselor notes that Person
A was on the selection committee and stated �that all applicants were
equally considered and the best ones were selected, based on their time
in grade, experience and position (Team Coordinators).� Further, the
counselor notes an interview with Person B, Manager, AMQ-1, regarding
complainant's claim of �non-selection.� According to the counselor's
report, Person B �stated that she had not discussed the Team Coordinator
selection process with [complainant] and he never asked her about it or
requested an out-briefing concerning his non-selection.�
The record reveals that in his formal complaint, complainant stated that
he was discriminated against when �Team Coordinators in the AMQ-110,
200, and 300 were upgraded and promoted to GS-1102-14s.� [emphasis
added] As a resolution for his complaint, complainant sought an upgrade
to an FG-1102-14 and selection to the next available FG-1102-14 Team
Coordinator position.
The Report of Investigation (ROI) notes the accepted issue for
investigation by the agency involved complainant's claim that the
agency upgraded several team coordinator positions but did not upgrade
his position. However, we note the ROI contains information regarding
the upgrading of the team coordinator positions as well as information
concerning the selections for the upgraded positions. With regard to
the selection for the upgraded positions, we note the record contains
position descriptions for the Procurement Analyst and Contract Specialist
positions, the best qualified lists for the relevant positions, and the
personnel selection decision paper concerning the selections for the
relevant positions.
Based on the foregoing, we find that complainant timely raised the
following issue with an EEO Counselor: whether complainant was subject
to discrimination when certain positions within his directorate were
reclassified to a higher grade and his position was not upgraded and
when he was subsequently not selected as a Team Coordinator for one of
the upgraded positions.
Upon review of the entire record, we find that the AJ improperly
denied certification of the instant class complaint. With regard to
commonality, complainant alleges that the agency's promotion policy
has a disparate impact on African-American employees who were denied
competitive and/or noncompetitive promotion to a GS-5 or higher position.
Specifically, complainant noted that in April 1996, the FAA adopted the
FAA Personnel Management System (FPMS) and Personnel Reform Implementation
Bulletins (PRIB) which he claims gave the local employing agency so much
�flexibility� that they were completely subjective without any meaningful
standards. Additionally, complainant noted in 1999, the agency adopted
an FAA Human Resources Manual and implementing Human Resources Operating
Instructions (HROI)which failed to eliminate the subjectivity which
already existed. While we note that each division has separate selecting
individuals, complainant alleges that all are subject to the same agency
promotion policy and oversight by the central servicing Human Resources
Department which provides guidelines for all divisions. Given the lack
of discovery in the present complaint, the Commission finds complainant's
allegations combined with the affidavits provided by eighteen purported
class members which contain various allegations of non-selections for
positions in favor of non-African-American employees, at this stage,
is sufficient to establish commonality. See Tarrats, et al. v. Federal
Deposit Ins. Corp., EEOC Appeal No. 01A41422 (November 15, 2004)
Similarly, we find complainant satisfied the typicality prerequisite
necessary for certification. As discussed above, the record reveals
that complainant timely contacted an EEO Counselor with regard to his
claim that five Team Coordinator positions were upgraded in January 1998,
while his position was not upgraded and that although he made the best
qualified list, he was subsequently denied a promotion for the five
upgraded Team Coordinator positions. While we note that complainant's
denial of an upgrade was not part of the class complaint, we find that
the class complaint encompasses African-American employees, employed by
the FAA at the MMAC in permanent positions during the period of November
1, 1997 to present, who were denied competitive and/or noncompetitive
promotion to a GS-5 or higher position due to the disparate impact of
subjective promotion practices. We note that complainant's claim that he
was non-selected for five Team Coordinator positions in February 1998, is
sufficiently typical of the claims of the class to support certification.
With regard to numerosity, we find the AJ properly determined that
the class complaint satisfies this requirement. Specifically, we
note that complainant identifies the class as consisting of at least
330 individuals, which we find sufficient, at this stage, to satisfy
numerosity.
With regard to adequacy of representation, we note that on appeal
complainant is represented by a different law firm than that which
represented him at the time the AJ found complainant satisfied the
adequacy of representation prerequisite. Thus, we note that complainant
needs to show that the current law firm will �fairly and adequately
protect the interests of the class.� Complainant notes on appeal that
the law firm currently representing him has represented classes of
employees for more than twenty years. The law firm notes that it is
currently representing certified classes before the Commission in Boord
v. Department of Justice, Durnford v. Department of Justice, and Flournoy
v. National Aeronautics and Space Admin. In addition, the firm states it
has also settled an EEOC class action in Burden v. Social Security Admin.,
EEOC Case Nos. 120-99-6378X; 120-99-6379X; 120-99-6380X. The agency
has not challenged these assertions. Further, complainant maintains he
has no conflicts with other class members. We find sufficient evidence
exits to support a finding of adequacy of representation.
Accordingly, we find that the class described above meets the class
certification requirements. The Commission notes that the AJ retains
the discretion to redefine a class, subdivide it, or recommend dismissal
if it is discovered that there is no longer a basis to proceed as a
class complaint. See 29 C.F.R. � 1614.204(d); Dunbar v. SSA, EEOC
Appeal No. 01975435 (July 8, 1998), req. to recons. den., EEOC Request
No. 05981075 (January 22, 1999).
CONCLUSION
Accordingly, the agency's final order is REVERSED, and the matter is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the Dallas Office a
complete copy of the complaint file within fifteen calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the class
complaint and the agency shall then issue a final decision in accordance
with 29 C.F.R. � 1614.204.
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
September 28, 2005
__________________
Date
1On appeal, complainant states he never received a final order, but he
filed an appeal from a decision issued denying class certification that
was sent to another class member. There is no decision in the record
concerning complainant's individual complaint.
2The agency submitted an Errata on April 21, 2001, containing corrections
to its Motion and Memorandum in Opposition to Complainant's Motion for
Class Certification.
3The names of those individuals have not been identified.