01984749
05-06-2000
Glenda C. Ables et al., Bonnie Edmondson et al, Complainants, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Glenda C. Ables et al., Bonnie Edmondson et al v. United States Postal Service
01984749
May 6, 2000
Glenda C. Ables et al., )
Bonnie Edmondson et al, )
Complainants, ) Appeal No. 01984749
) Hearing Nos. 100-97-7432X
v. ) 100-97-7598X
) Agency Nos. CC-0002-97
William J. Henderson, ) CC-0003-97
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainants timely filed an appeal with this Commission from a
final decision, dated April 27, 1998, denying class certification
for two proposed class complaints.<1> The Commission accepts the
complainants' appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405. For the reasons set forth below,
the Commission finds that the Edmondson complaint should be certified as
a class complaint. The Commission also finds that the Ables class must be
remanded to permit limited discovery and amendment of the class complaint
before a fully informed decision on class certification may be rendered.
ISSUES PRESENTED
The issues presented on appeal are (1) whether the agency erred when it
dismissed some of the Ables class claims for failure to state a claim
and (2) whether the agency erred when it rejected the Administrative
Judge's recommendation that the Edmondson and Ables class complaints
should be certified.
BACKGROUND
After obtaining counseling, Ms. Ables and fourteen other class agents
timely filed a formal class complaint, December 11, 1996, wherein they
alleged that the agency adopted an EAS Postmaster Compensation Package
that was designed and intended to discriminate or, if not so intended,
had the effect of discriminating against a class of Postmasters based
on race and national origin (African Americans, Asians, Hispanics,
and Native Americans), sex (female), and age (40 years and older).
The agents sought to represent a class of postmasters (A, B, C, D, E,
EAS 11, EAS 13, and non-Fair Labor Standards Act (FLSA) exempt EAS 15)
who were excluded from salary and other compensations benefits provided
in the EAS Postmaster Compensation Package, implemented by the Agency
on October 9, 1996, for the Fiscal Years 1996 thorough 1998. The EAS
Postmaster Compensation Package included salary increases, a merit pay
program, an economic value added (EVA) variable pay program; and a 50%
reduction in paid leave, inclusive of travel time, to attend postmaster
conventions. The Ables complaint included other claims addressed below.
After obtaining counseling, Ms. Edmondson filed a second class complaint,
dated January 22, 1997, wherein she alleged that the EVA variable pay
program had an adverse impact on a class of non-FLSA-exempt female
postmasters.
The agency forwarded the class complaints to the EEOC. In a recommended
decision, the Administrative Judge noted that the Edmondson complaint
appeared to be subsumed in the Ables complaint. The Administrative Judge
also noted that counsel for both complaints agreed to jointly represent
the putative female class members and that the sex discrimination claim
in the Edmondson complaint would be adjudicated in the Ables complaint
with the representation of both counsel. However, the Administrative
Judge subsequently concluded that the agency should accept both class
complaints.
The Administrative Judge agreed with the agency that the Ables class
had not alleged that they had been personally aggrieved as to two claims
(the compensation package would make positions of the putative class
members undesirable for future applicants; the compensation package
would result in the closing of small post offices). Accordingly,
the Administrative Judge recommended that the agency dismiss these
claims for failure to state a claim. The Administrative Judge rejected
the agency's contention that the Ables class could not establish a
prima facie case of discrimination regarding the alleged reduction of
convention leave because all postmasters had been treated similarly,
finding that the argument was irrelevant to the certification decision.
The Administrative Judge found that the EAS Postmaster Compensation
Package claims stated actionable claims.
The Administrative Judge then determined that both class complaints
satisfied the criteria for a class complaint. The Administrative Judge
found that the requirement of commonality was satisfied because the
complaints alleged that the agency applied a national policy, promulgated
by the agency's Headquarters, which uniformly had a disparate impact upon
the entire putative class. The Administrative Judge concluded that, thus,
there were questions of fact common to the class. The Administrative
Judge found that the typicality requirement was satisfied because the
claims of the class agents were identical to the claims of the class and
the objective of all the class members and the class agents appeared
to be the same, i.e., giving each member of the class access to the
benefits of the compensation package. The Administrative Judge found
that the numerosity requirement was satisfied because the Edmondson class
agent had provided the names of approximately 5,700 female members of
the putative class and the Ables class agent indicated that the class
consisted of over 10,000 members, the "majority of which belong to the
protected classes at issue." The Administrative Judge found additionally
that the geographic dispersal of putative class members made joinder
impracticable. Finally, the Administrative Judge found that the class
agents and the attorneys satisfied the requirement that the putative
classes be adequately represented. The Administrative Judge pointed out
that both attorneys had experience in EEO law and that the Ables attorney
had litigated multiple nationwide class action cases in non-EEO matters.
The Administrative Judge indicated that questions concerning the adequacy
of representation of non-union members by Ms. Edmondson's attorney, could
be resolved by the attorney's notification to all class members of his
duty to represent the entire class regardless of their union membership.
The Administrative Judge also noted that these class actions had the
financial backing of the National Association of Postmasters of the United
States (NAPUS) and the National League of Postmasters of the United States
(League). The Administrative Judge advised that if the interests of
the class members (females, African Americans, etc.) conflicted at any
point in the litigation, it would be appropriate to divide the classes
into subclasses.
The final agency decision rejected almost all of the Administrative
Judge's findings. The agency's decision held that the EAS- Postmaster
Compensation Package claims failed to state a claim because they stated a
generalized grievance, citing Votolato v. United States Postal Service,
EEOC Appeal No. 01966365 (May 5, 1997). The decision reiterated the
agency's position that the class agents had not established a prima facie
showing of discrimination on any basis regarding the convention leave
issue because all postmasters at all levels lost the same convention leave
benefit, a benefit that no other employees had. The decision explained
that, thus, the reduction of the benefit for Postmasters did not have
a disparate impact on the non-FLSA-exempt Postmasters. The decision
agreed with the Administrative Judge that two claims (discouragement
of future applicants and possible small post office closings) failed to
state a claim. The decision found that two additional claims (the pay
package allegedly disadvantaged the class in comparison to bargaining
unit employees; the pay package allegedly violated the pay differential
provisions of the Postal Reorganization Act) also failed to state a
claim within the purview of 29 C.F.R. Part 1614.
The final agency decision held that three requirements for class
certification (commonality, typicality, and adequacy of representation)
had not been met. The decision found that the requirement of
commonality had not been satisfied except for the EVA pay program claims.
The decision found that the questions of lack of equity in salaries,
merit raises, and bonuses were inherently tied to individual performance
and the standing of any individual in the salary structure at the time
the pay package was issued. The decision concluded, therefore, that
the litigation would quickly devolve into a series of mini-trials on the
individual merit of each postmaster's performance. The agency's decision
rejected the Administrative Judge's finding that the claims of the class
agents were typical of the claims of the class because purportedly the
Administrative Judge had not addressed the agency's argument that the
interests of the various protected groups presented potential conflicts
that undermine typicality. The decision indicated, for example, that
the members of a class seeking to prove sex discrimination were unlikely
to welcome a diversion of resources to the proof of something else.
The agency's decision further found that the requirement for adequacy
of representation had not been satisfied. The decision observed that
class counsel were not experienced in Federal sector EEO class complaint
litigation. The decision also expressed concern that there was a conflict
of interest or the appearance of a conflict of interest in having Ables
complaint's counsel represent both NAPUS and the class. Specifically,
the decision represented that NAPUS had taken positions in consultations
with the agency that were inconsistent with the claims alleged here.
The decision also referenced the Administrative Judge's concern that
counsel in the Edmonson complaint represents class members equally
regardless of their lack of union membership.
After dismissing the two class complaints, the agency dismissed all of
the individual complaints, again citing Votolato v. United States Postal
Service, EEOC Appeal No. 01966365 (May 5, 1997).
On appeal, counsel for both classes file a joint appeal statement.
Therein, they emphasize the findings of the Administrative Judge,
contending that he properly recommended the certification of both classes.
In response, the agency relies on the reasoning set forth in the final
agency decision.
ANALYSIS AND FINDINGS
Volume64 Fed. Reg. 37,644, 37658 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. �1614.204(a)(1)) defines a class
as a group of employees, former employees or applicants for employment
who allegedly have been, or are being, adversely affected by an agency
personnel management policy or practice that discriminates against
the group on the basis of their race, color, religion, sex, national
origin, age, or disability. EEOC Regulation 29 C.F.R. �1614.204(a)(2),
modeled upon Rule 23 of the Federal Rules of Civil Procedure, defines four
requirements that must be satisfied for a class complaint to be certified:
(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 class representative must fairly and adequately protect the interests
of the class. EEOC Regulation 29 C.F.R. �1614.204(d)(2) provides that a
class complaint may be dismissed if it does not meet the four requirements
of a class complaint or for any of the procedural grounds for dismissal
set forth in 29 C.F.R. �1614.107. Class complainants are not required
to prove the merits of their claims at the class certification stage;
however, they are required to provide more than bare claims that they
satisfy the class complaint requirements. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993).
The purpose of the commonality and typicality requirements is to ensure
that the class agents possess the same interest and suffer the same
injury as the members of the class. General Telephone Company of the
Southwest v. Falcon, 457 U.S. 147, 156 (1982); East Texas Motor Freight
System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1979). It is important to
resolve the requirements of commonality and typicality prior to addressing
numerosity in order to determine the appropriate parameters and the size
of the membership of the resulting class. Harris v. Pan American World
Airways, 74 F.R.D. 24, 15 F.E.P. Cases 1640, 1646 (N.D. Cal. 1977). The
numerosity requirement of Rule 23 imposes no absolute limit for the size
of a class complaint, but rather, requires an examination of the facts
of each case. General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980).
In addition to number, other factors such as the geographical dispersion
of the class, the ease with which class members may be identified, the
nature of the action, and the size of each plaintiff's claim, are relevant
to the determination of whether the numerosity prerequisite of Rule 23
has been met. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030,
1038 (5th Cir. 1981). In order to satisfy the adequate representation
criterion, the class representative should have no conflicts with the
class and should have sufficient legal training and experience to pursue
the claim. Byrd v. Department of Agriculture, EEOC Request No. 05900291
(May 30, 1990). Competency of counsel is particularly important for the
protection of the rights of class members. Foster v. Department of the
Navy, EEOC Request No. 05920483 (December 23, 1992).
Edmondson Complaint
As a threshold matter, the Commission finds that the definition of the
class set forth in the Edmondson complaint, as restated in counsels'
affidavits, is consistent with the definition of a class set forth in
29 C.F.R. �1614.204(a)(1). Specifically, the Edmondson class is defined
as all female Postmasters who hold non-FLSA-exempt Postmaster positions
within the agency and who are excluded from the EVA payment program.
The Commission also finds that the Edmondson complaint satisfies the
commonality and typicality requirements for a class complaint set forth
in 29 C.F.R. �1614.204(a)(2(ii) and (iii). The allegedly discriminatory
policy and practice is the exclusion of non-FLSA exempt postmasters
from participation in the EVA compensation program, an exclusion which
allegedly has a disparate impact on female Postmasters. Allegedly, the
majority of the employees who may participate in the EVA compensation
program, the FLSA-exempt Postmasters, are male, while approximately 70%
of the Postmasters who are excluded from the EVA compensation program,
are female. Because all of the class members, including the class agent,
have been affected by the allegedly discriminatory policy and practice,
the claim of the class agent, an EAS-15 non-FLSA exempt postmaster,
is identical to the claims of the other class members.
The Commission further finds that the Edmondson complaint satisfies
the numerosity requirement set forth in 29 C.F.R. �1614.204(a)(2)(1)
because the number of class members, allegedly over 5,000, and their
disbursement throughout the United States, renders consolidation of
individual complaints impractical.
Finally, the Commission finds that the Edmondson class counsel have
sufficient legal training and experience to pursue the class claim.
All three attorneys have litigated numerous individual EEO cases.
One attorney represented the agency in employment matters for eight years.
The preponderance of record evidence also indicates that the Edmondson
counsel have no conflicts of interest with the class. All three
attorneys state under oath that their law firm does not represent the
National League of Postmasters in this matter, but instead represents
all the members of the class, irrespective of their membership in the
National League of Postmasters. They also aver that the law firm had no
involvement whatsoever in the consultation between the agency and the
National League of Postmasters concerning the Postmaster Compensation
Pay Package.
The final agency decision held that all EAS Postmaster Compensation
Package claims, including the EVA pay package claim, fail to state a claim
because they state a generalized grievance. In so finding, the agency's
decision relied on a prior Commission decision, Votolato v. United States
Postal Service, EEOC Appeal No. 01966365 (May 5, 1997). The Commission's
Votolato decision, issued by the Office of Federal Operations, held that
the complaint failed to state a claim because the complainant in Votolato
had alleged a generalized grievance which was shared by a substantial
number of her coworkers. The Commission agrees with the Administrative
Judge that the Votolato decision, concerning an individual complaint of
discrimination, is not applicable to class complaints. Class complaints,
by their nature, concern claims that allegedly affect a substantial number
of employees. In addition, Ms. Votolato had not alleged that the agency
treated her differently than similarly situated employees because of
her sex. Nor had she alleged that the pay package had an adverse impact
on female employees. In the instant case, the Edmondson complaint clearly
alleges that the EVA pay program has an adverse impact on non-FLSA-exempt
female Postmasters because of their sex. The Commission finds that this
claim states an adverse impact discrimination claim under Title VII.
Having determined that the Edmondson complaint states a claim and
satisfies the requirements for certification as a class, it is the
decision of the Commission to reverse the agency's dismissal of the
Edmondson class complaint; to certify the class complaint; and to remand
the complaint to the agency for notification to class members as required
by � 1614.204(e)), and for forwarding to the Administrative Judge for
further proceedings under 29 C.F.R. �1614.204(f) et seq.
On remand the Edmondson parties should consider the affect, if any,
that Section 703(h) of Title VII, 42 U.S.C. �2000e-2(h), has on the EVA
pay program claim.
Ables Complaint
As a threshold matter, the Commission finds that the definition of
the class set forth in the Ables complaint is not consistent with the
definition of a class set forth in 29 C.F.R. �1614.204(a)(1). The Ables
complaint, as described by class counsel in response to the Administrative
Judge's Order, defined the class as:
[a] class . . . consisting of several thousand current and future
Postmasters in offices characterized by the Postal Service as A, B, C,
D, E, EAS 11, EAS 13 and non-FLSA exempt EAS 15 . . . .
As written, the proposed class includes all Postmasters in the listed
categories, including men and women, minority and non-minority, under
age 40, and 40 years of age or older. It appears from the record as a
whole that such a result was not intended, and that the actual intent
was to limit the class to individuals who allegedly have been adversely
affected by agency practices that allegedly discriminate against the
class on the basis of their race and/or national origin, sex or age.
In addition, the proposed class also includes future Postmasters even
though only employees, former employees, or applicants for employment
may be included in an administrative class complaint as defined by 29
C.F.R. �1614.204(a)(1). On remand, class counsel shall be given an
opportunity to amend the definition of the proposed class to conform to
the requirements of 29 C.F.R. �1614.204(a)(1) and the record evidence
as discussed further below.
The Commission also finds that several of the Ables complaint claims fail
to state claims of unlawful employment practices under 29 C.F.R. Part
1614: the claim that the long term reduction in benefits will violate
the pay differential portion of the Postal Reorganization Act; and
the claims that the reduction in salary and benefits will make the
position of smaller office Postmasters undesirable and will allow
upper level management to close and/or consolidate smaller offices,
thereby denying future class members from obtaining these positions.
See 29 C.F.R. �1614.103(a) and (c). In addition, the Ables complaint
includes a third claim that is merely speculative. This third claim
alleges that certain higher level managers have established budgets
virtually guaranteeing that upper level post offices will make budget
and appear very successful while lower level offices will not make budget
and fail to satisfy performance criteria. Since the class members have
not allegedly received unsuccessful performance ratings, the Commission
finds that the third claim also fails to state a claim.
The agency dismissed an additional claim (the denial of annual general
increases when compared with those received by the craft unions) for
failure to state a claim. However, the Commission finds that the latter
claim was one of several factual claims supporting the claim that the net
long term reduction in pay for class members was discriminatory based on
the non-FLSA-exempt Postmasters' race and/or national origin, sex, or age.
The agency dismissed another claim, the reduction in convention
leave, because all postmasters at all levels lost convention leave.
The Commission agrees that the admittedly uniform reduction of
convention leave does not state a discrimination claim. Finally,
a claim alleges that for several years the agency has abandoned its
duty to train lower level postmasters. However, the complaint does
not allege that the agency has provided training to some Postmasters,
but not to others, based on their race, sex, national origin, or age,
during this period of time. Therefore, the Commission finds that the
class complaint does not state a claim of discrimination in training.
Similarly, the Commission finds that this claim does not state claims
of discrimination in promotion and discipline.
Finally, the final agency decision held that all EAS Postmaster
Compensation Package claims fail to state claims, citing the Votolato
decision. The Commission finds the Votolato decision inapplicable to
the Ables class complaint for the same reasons the Commission finds the
decision inapplicable to the Edmondson class complaint as discussed above.
The Commission observes that the Ables class complaint includes a general
claim that there are questions of law and fact common to the class under
the Equal Pay Act. However, the complaint does not include any factual
claims which state a claim under the Equal Pay Act, 29 C.F.R. �206(d).
For example, the class complaint does not allege that the lower paid
non-FLSA exempt female Postmasters perform work which requires equal
skill, effort, and responsibility as the work performed by the higher
paid male FLSA-exempt Postmasters. The complaint also does not allege
that the work of the female non-FLSA exempt Postmasters is performed
in the same establishment in which the work of the higher paid male
FLSA-exempt Postmasters is performed. Lacking such factual claims,
the Commission finds that the Ables class complaint fails to state an
Equal Pay Act claim.
Turning to the requirements for class complaint certification, the
Commission finds insufficient information in the record to render a
determination on the commonality requirement. For example, there is
no indication in the record that there exists a class of Postmasters
(40 or more years of age) who have been discriminated against based on
their age by the EAS Postmaster Compensation Package. While, allegedly,
the majority of the non-FLSA exempt Postmasters are 40 years of age
or older, an even greater percentage of exempt Postmasters may be 40
years of age or older. If so, the provision of different compensation
packages for FLSA exempt Postmasters and non-FLSA-except Postmasters may
be more favorable to Postmasters who are 40 years of age or older than
to Postmasters who are under 40 years of age. Similarly, the record
indicates that allegedly 887 (6%) of the non-exempt Postmasters are
members of a racial and/or ethnic minority groups (Hispanic, African
American, Asian American, Native American). The record is silent as to
the number and percentage of exempt Postmasters are members of a racial
and/or ethnic minority groups.
Because the Ables class counsel have not had an opportunity to obtain
sufficient information to determine whether the EAS Postmasters
Compensation Package may have an adverse impact on Postmasters based
on their race and/or ethnic group or age, the Commission vacates the
agency's dismissal of the class complaint and remands the complaint to the
Administrative Judge to supervise discovery of such information. At the
same time, the class counsel may also request information pertaining
to the impact of the EAS Compensation Package on female Postmasters.
Upon completion of this preliminary discovery, the Ables class counsel
shall amend the class complaint to reflect the information obtained and
the Commission's dismissal of several of the class claims as discussed
above.
The final agency decision held that the Ables complaint did not satisfy
the commonality requirement for a class complaint because the agency
found that questions of lack of equity in salaries, merit raises, and
bonuses were inherently tied to individual performance and the standing
of any individual in the salary structure at the time the pay package
was issued. The decision concluded, therefore, that the litigation
would quickly devolve into a series of mini-trials on the individual
merit of each postmaster's performance. The Commission finds that the
agency misinterprets the Ables class complaint. The complaint alleges
that the agency adopted an EAS Postmaster Compensation Package that
was designed and intended to deny equity in salaries, merit raises, and
Economic Value Added (EVA) pay, or, if not so intended, had the effect
of discriminating against the class based on race and national origin,
sex, and age. For example, the Compensation Package totally excludes A
through E Postmasters from merit raises and bonuses regardless of their
individual performances. The Compensation Package also establishes
different salary levels for different EAS categories, and even different
percentages of pay for merit raises for Postmasters receiving the same
overall performance ratings. Essentially, the Ables complaint alleges
that the compensation rules, set forth in the EAS Postmasters Compensation
Package, discriminate against class members because of their race and
national origin, sex and age. The Ables complaint is not challenging
the class members' individual performance ratings.
As to the requirement that the claims of the class agents be typical of
the claims of other class members, the Commission finds that the class
agents' claims are typical of only a portion of the class. While the
15 named class agents are non-FLSA-exempt Postmasters who are female
and/or members of racial or ethnic minority groups, they all hold EAS 11,
EAS-13, or EAS-15 Postmaster positions. All are full-time employees,
unlike the A, B, C, D, and E Postmasters who are part-time employees.
Unlike the named class agents, the A-E Postmasters are not covered by the
EAS Postmaster Compensation Package. They allegedly are not eligible
for merit bonuses or any other bonuses. Unlike the EAS-13 and EAS-15
class agents, the EAS-11 and the A-E postmasters did not receive a salary
adjustment. On remand, the Ables complaint's counsel shall be given an
opportunity to add part-time Postmasters as named class agents. As to
the agency's concern that the interests of different class groups may
differ, the Commission finds no present conflict of interest. If a class
is certified on remand and a subsequent conflict of interest arises, the
Administrative Judge would divide the class into appropriate subclasses.
The agency did not dispute the Administrative Judge's finding that the
Ables complaint satisfies the requirement of numerosity. The Commission
finds that even if the class were redefined to include only female
non-FLSA exempt Postmasters, the class allegedly would include more than
5,000 members disbursed throughout the United State. Thus, it appears
that the Ables complaint satisfies the numerosity requirement set forth
in 29 C.F.R. �1614.204(a)(2(i).
The fourth requirement for a class complaint is adequacy of
representation. The final agency decision listed three reasons to
question class counsel's ability to adequately represent the class.
First, the agency concluded that counsel was unfamiliar with the Federal
sector complaint process because he requested an independent counselor
and investigator. Second, the agency indicated that the scope of the
class complaint and its shortcomings did not demonstrate counsel's
experience in this sort of litigation. Third, the agency indicated
that counsel had a conflict of interest with class members who were
not members of NAPUS, since class counsel represented NAPUS, which was
clearly sponsoring the Ables class litigation. The agency represented
that NAPUS, which purportedly did not represent a significant number of
Postmasters, had taken positions that were inconsistent with class claims.
The agency emphasized that adequacy of representation is particularly
important because class members who are not adequately represented cannot
be bound by a court's judgment in a class action.
The Commission observes that the Ables complaint's counsel has had
experience in individual EEO cases and has litigated multiple nationwide
class action cases in non-EEO matters. The Commission also observes that,
unlike class litigation in Federal District Court, counsel has not had
the opportunity for discovery and, thus, lacked necessary class complaint
information. On remand, counsel will have the opportunity to discover the
needed information, to redraft the Ables class complaint, and to provide
an affidavit on the conflict of interest issue. The Administrative
Judge will then be in a better position address the agency's concerns
regarding adequacy of representation.
Individual Complaints
Because the Commission is certifying the Edmondson class complaint
and remanding the Ables class complaint for discovery, redrafting, and
certification decision, the Commission vacates the agency's dismissal
of the individual complaints. A decision on the Ables class agents'
individual complaints will be necessary only if the Ables class complaint
is not certified on remand.
Complaints not Consolidated
Because the Commission is certifying the Edmondson class complaint, but
remanding the Ables class complaint for limited discovery and amendment
prior to a determination on class certification, the Commission finds
that the two class complaints should not be consolidated for processing.
However, because the Commission has rendered different findings on
the two complaints, it is possible that a request for reconsideration
of this decision may be filed regarding the findings on only one of
the complaints. If so, the agency and the Administrative Judge shall
continue to process the other complaint.
CONCLUSION
For the reasons stated above, the Commission certifies the Edmondson class
complaint and remands the Ables class complaint for preliminary discovery
and amendment consistent with this decision prior to a determination
on class certification. The agency and the Administrative Judge shall
process each complaint separately as set forth in the Orders below.
EDMONDSON CLASS COMPLAINT ORDER
1. The agency is ORDERED to forward the Edmondson class complaint file,
including a copy of the class complaint and the Commission's decision on
class certification, to the EEOC's Washington Field Office, Washington,
D.C., with a cover letter requesting that the class complaint be assigned
to an Administrative Judge for discovery proceedings and hearing.
The agency's cover letter shall inform the Washington Field Office
that the Commission's Order requires the Edmondson class complaint,
as certified by the Commission, to be assigned as soon as possible to an
Administrative Judge, preferably to the Administrative Judge who issued
the prior decision. The request letter shall also inform the Washington
Field Office that the Administrative Judge shall begin the discovery
process under 29 C.F.R. � 1614.204(f) within ten (10) calendar days of
the date the case is assigned. The agency shall complete these actions
within ten (10) calendar days of the date this decision becomes final.
2. The agency is ORDERED to notify potential Edmondson class members
(that is, all females who held a non-exempt postmaster position sometime
during fiscal years 1996 through 1998) of the Commission's acceptance of
the class complaint in accordance with 29 C.F.R. �1614.204(e), as amended
by 64 Fed. Reg. 37,644, 37, 658 (1999), within fifteen (15) calendar
days of the date this decision becomes final. The notice shall contain
the law firm's name, mailing address, E-mail address, telephone number,
and facsimile number for the attorney who is representing the class.
3. The agency shall send to the Compliance Officer referenced below, and
to the attorney who is representing the class, copies of the agency's
class complaint notifications to class members and a copy of the letter
forwarding the complaint file to the EEOC's Washington Field Office
within fifteen (15) calendar days of the date this decision becomes final.
ABLES PROPOSED CLASS COMPLAINT ORDER
The agency is ORDERED to forward a copy of this decision, and a copy
of the Ables proposed class complaint record, to the EEOC's Washington
Field Office. The agency's cover letter shall inform the Washington
Field Office that the Commission's Order requires the Ables proposed
class complaint, as remanded by the Commission, to be assigned as soon
as possible to an Administrative Judge, preferably to the Administrative
Judge who issued the prior decision. The request letter shall also
inform the Washington Field Office that the Administrative Judge shall
begin a preliminary discovery process within ten (10) calendar days of
the date the case is assigned. The agency shall complete these actions
within ten (10) calendar days of the date this decision becomes final.
The Administrative Judge shall grant the Ables class counsel an
opportunity to conduct preliminary discovery, as described in the decision
above, in order to obtain the information necessary to redraft the Ables
class complaint.
Class counsel shall also submit to the Administrative Judge and to the
agency an affidavit on the conflict of interest issue.
At the close of the preliminary discovery, the class counsel shall
amend the class complaint consistent with the evidence of record and
the Commission's class complaint regulation, 29 C.F.R. �1614.204.
The Administrative Judge shall also provide the Ables class counsel
an opportunity to add one or more part-time Postmasters as named class
agents, as appropriate in light of the amended class complaint.
The Administrative Judge shall then render a decision on class
certification, and continue processing the class complaint if appropriate,
in accordance with 29 C.F.R. �1614.204.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
May 6, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that the
decision was mailed to the complainant, the complainant's representative
(if applicable), and the agency on:
DATE Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.