01994518
07-20-2000
Janet Howard, et al. Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Janet Howard, et al. v. Department of Commerce
01994518
July 20, 2000
Janet Howard, et al. )
Complainant, )
)
v. ) Appeal No. 01994518
) Agency No. 95-55-0278
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
The complainant filed an appeal with this Commission from an agency
decision, dated April 16, 1999, which disqualified her from serving as
agent for a proposed class.<1> The Commission accepts the complainant's
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, it is
the decision of the Commission to deny a motion to intervene filed
by two class members; to reverse the agency's disqualification of the
complainant from serving as class agent; and to provisionally certify
the class complaint.
ISSUES PRESENTED
The following issues are presented in this appeal: (1) whether the agency
was authorized by EEOC regulation to issue a decision disqualifying the
complainant as class agent; (2) whether Administrative Judge 2 properly
remanded class complaint 1 to the agency to hold in abeyance pending the
identification of a new class agent, rather than issuing a decision on
class certification; and (3) whether class complaint 1 satisfies the
commonality, typicality, numerosity, and adequacy of representation
class complaint requirements.
BACKGROUND
The complainant named in the case caption contacted an EEO Counselor on
October 21, 1994, and filed a timely class complaint, dated February
22, 1995 (hereinafter referred to as class complaint 1). Therein,
she alleged discrimination based on race and retaliation against a
class of African-American employees who worked for the agency in the
metropolitan area of Washington, D. C. Class complaint 1 alleged that
the complainant and all other class members had been discriminated
against based on race (African American) in the area of promotions,
awards, performance ratings, career enhancing work assignments, timely
training for advancement, and resource support readily available to the
majority.<2> The agency forwarded class complaint 1 to the EEOC for a
recommendation by an administrative judge on acceptance or dismissal.
After obtaining additional information from the parties, Administrative
Judge 1 recommended that the agency dismiss class complaint 1 on grounds
that it did not meet any of the four requirements set forth in 29
C.F.R. �1614.204(a). By decision of August 7, 1995, the agency accepted
the recommendation and dismissed class complaint 1.
On appeal, the complainant and class member H, through counsel, contended
that Administrative Judge 1 erred by seeking information from the class
which was almost exclusively in the possession of the agency and which
the agency had not provided them.<3> Counsel clarified the gravamen
of the complaint and contended that the information that had been
obtained showed that class certification was appropriate. Specifically,
counsel indicated that the gravamen of class complaint 1 was that the
agency's subjective decision making had prevented African-Americans as
a group from advancing according to their merit, through discriminatory
promotion denials and other discriminatory employment decisions that
adversely affected job advancement, including performance evaluations,
job assignments, training, awards and recognition. Counsel also clarified
that the proposed class included only those African-American employees who
worked in the Washington, D.C., area and who were denied promotions and
other opportunities related to career advancement because of their race.
In response, the agency contended that, having failed to use the
plethora of information at their disposal, the agents may not demand yet
another chance for class certification. The agency also contended that
Administrative Judge 1 correctly found that class complaint 1 did not
satisfy the prerequisites for a class complaint, and that the complaint
should be dismissed for failure to cooperate with the agency's attempts
to obtain information about the informal class complaint.
In its appellate decision, Howard et al. v. Department of Commerce, EEOC
Appeal No. 01956455 (June 4, 1997), request for reconsideration denied,
05970855 (October 24, 1997), the Commission found that the adequacy
of representation criterion had been satisfied because law firm 1,
with prior class action experience, had been retained to represent
the proposed class. The Commission remanded class complaint 1 to
be forwarded to the administrative judge to determine whether it met
the commonality, typicality, and numerosity prerequisites for a class
complaint after supplementation of the record.
On remand, class complaint 1 was assigned to Administrative Judge
2 who requested both parties to provide her with all submissions
previously filed with the EEOC's Washington Field Office and Office
of Federal Operations because the agency had not provided her with
a copy of the record. Administrative Judge 2 also required the
parties to update and supplement, where necessary, their responses
to Administrative Judge 1's April 12, 1995 Request for Information
(RFI). Both parties submitted information in response. In addition,
the complainant notified Administrative Judge 2 that the class was no
longer represented by law firm 1 and indicated that she expected that
law firm 2 would soon represent the class. By letter dated October 13,
1998, law firm 2 notified Administrative Judge 2 and the agency that
it would be representing the complainant, as class agent, in seeking
class certification of non-supervisory African-American employees in
the agency's Headquarters offices. On October 14, 1998, in response
to an October 7, 1998 conference call, the complainant and class member
H filed statements explaining why each believed she should continue to
serve as sole class agent.<4> The complainant's statement contained,
among other things, an unsworn allegation that law firm 1 no longer
represented the class because class member H had embezzled $4000 which
had been entrusted to the complainant and class member H to pay the
class legal expenses and for which class member H and the complainant
were jointly and severally responsible.
On November 23, 1998, Administrative Judge 2 ordered the parties to show
cause why she should not: (1) dismiss a March 22, 1995 class complaint
signed by class members H (hereinafter referred to as class complaint 2),
on the ground that it stated the same claims set forth in class complaint
1, dated February 22, 1995; and (2) disqualify the complainant and/or
class member H from serving as class agent on the ground that they have
not shown that they will fairly and adequately protect the interests of
the class. Responses were filed by the complainant, the agency, and
class member H. In addition, class member R notified Administrative
Judge 2 that he intended to remain as one of the class agents.
Administrative Judge 2's Remand
On March 24, 1999, Administrative Judge 2 issued a decision recommending
dismissal of class complaint 2 on the grounds that it stated the same
claims that were raised in class complaint 1. Administrative Judge 2 also
found that even though the complainant and class members H and R had been
referred to as class agents for class complaint 1, the complainant in fact
was the only individual to hold class agent status for class complaint
1, because she alone signed the complaint as required by 29 C.F.R. �
1614.204(c)(1). Administrative Judge 2 further found, however, that the
complainant should be replaced as class agent because she had not shown
that she would adequately represent the interests of the class as class
agent.<5> Specifically, Administrative Judge 2 found that the complainant
unilaterally decided to exclude class member H from the litigation of
the complaint even though class member H had played a critical role in
prosecuting the complaint from its inception.<6> Administrative Judge 2
stated that although class member H did not officially hold the status
of class agent, she was not just any member of the class, but rather, she
was the President of the Commerce Committee for African-American Concerns
(hereinafter referred to as the CCAAC), which Administrative Judge 2
viewed as the organization of agency employees which initiated class
complaint 1. Administrative Judge 2 also opined that the complainant,
as Treasurer of CCAAC, had seized control of class complaint 1 from the
CCAAC President, and, thereby, effectively disenfranchised the members
of the CCAAC who had been funding the litigation.
Administrative Judge 2 gave a second reason for disqualifying the
complainant from serving as class agent. Specifically, Administrative
Judge 2 determined that at a minimum the complainant had not been candid
with class member H or with the EEOC regarding the processing of class
complaint 1. Administrative Judge 2 found that the complainant had
concealed from class member H her efforts to secure legal representation
for the putative class; had led Administrative Judge 2 to believe that
class member H had consented to having EEOC communicate directly with the
complainant instead of class member H; had offered different reasons on
different occasions as to why class member H should not have a role in
the class complaint; and, as Treasurer of CCAAC, may possibly bear some
responsibility for the alleged misuse of litigation funds. Administrative
Judge 2 indicated, however, that it appeared the complainant had been
effective in publicizing the complaint and garnering support for it from
agency employees and civil rights organizations. She indicated that she
did not intend to foreclose the complainant from continuing in this role.
Administrative Judge 2 then remanded class complaint 1 to the agency for
45 calendar days pending identification by the CCAAC of another agent
who would adequately represent the interests of the putative class.
Administrative Judge 2 indicated that upon identification of another
agent, the agency should transmit the case to her office so that EEOC may
resume processing of class complaint 1 as required by the Commission's
prior decision on class complaint 1. Alternatively, Administrative
Judge 2 indicated that if CCAAC failed to identify another agent within
the 45-day time frame, the agency could dismiss the complaint pursuant
to 29 C.F.R. � 1614.107(g).
Agency Decision
By decision of April 16, 1999, the agency adopted Administrative Judge
2's recommendation that class complaint 2 be dismissed on the ground
that it stated the same claims raised in class complaint 1. The agency
adopted Administrative Judge 2's finding that class member H was not
a class agent for class complaint 1 because only the complainant had
signed class complaint 1.<7> Finally, the agency adopted Administrative
Judge 2's finding that the complainant be disqualified as class agent
for class complaint 1. The agency then held that the putative class
should be afforded an opportunity to select a new class agent(s) who
could meet the regulatory requirements. The agency indicated that
it would hold class complaint 1 in abeyance for 45 calendar days from
the date of the decision, April 16, 1999, for the class to designate a
new class agent(s). The decision further indicated that if the class
did not notify the agency of one or more new class agent(s) within the
45-day time frame, class complaint 1 would be dismissed pursuant to 29
C.F.R. � 1614.107(g). The agency mailed copies of its decision to the
complainant, the complainant's attorney, and class member H.
Appeal Contentions
Law firm 2, on behalf of the complainant, timely filed the instant appeal
from the agency's April 16, 1999 decision. The complainant contends
that Administrative Judge 2, and the agency in adopting Administrative
Judge 2's decision, misstated the facts and misapplied the law.
The complainant also contends that Administrative Judge 2 erroneously
placed the selection of the class agent in the hands of the agency and
foreclosed the most vigorous proponent of the class from prosecuting the
action on behalf of the class. In support of the complainant's adequacy
to serve as representative, the complainant submits several exhibits,
including affidavits from the Vice President, Blacks in Government
Commerce Chapter (BIGCC), and the person elected Vice President of
CCAAC in 1996. The complainant also submits the signatures of 170 class
members indicating support for the complainant as class agent.
In response, the agency contends that Administrative Judge 2 correctly
addressed whether the complainant has the personal characteristics and
integrity necessary to act as a fiduciary in representing the proposed
class. The agency contends that, although the complainant levied
the charge of embezzlement against class member H, the complainant
was the treasurer of CCAAC and therefore bore responsibility for the
group's finances. The agency also contends that the complainant's
failure to provide information to class member H was more egregious
than the failure to inform an individual class member because class
member H was the President of CCAAC, she accompanied the complainant to
class counseling, and was named as a class agent in class complaint 1.
The agency further questions the extent to which the signers of the
petition and the financial supporters were informed as to Administrative
Judge 2's specific concerns regarding the complainant's adequacy to serve
as class agent. Finally, the agency contends that this appeal is nothing
more than an attempt to salvage the complaint of a person who already
has lost her individual complaint in United States District Court.
ANALYSIS AND FINDINGS
Denial of Motion for Intervention Filed by Class Members H and R
The Commission does not have any record of an appeal filed by class
members H or R from the April 16, 1999 decision. However, law firm 3 has
filed a motion on behalf of class members H and R to intervene as putative
class agents, and to urge that the Commission dismiss this appeal because
it is an unauthorized interlocutory appeal from a non-final order.
Class members H and R contend they now are the putative class agents with
responsibility for class representation because the agency timely received
their new agent designation on Monday, June 7, 1999. They contend that
their class agent designation was timely filed because class member H
did not receive the agency's decision until April 22, 1999, and the 45th
day following the date of receipt fell on Sunday, June 6, 1999.
In response, the agency contends, among other things, that class members
H and R did not timely designate themselves as class agents, because the
agency's decision specifically instructed the putative class to designate
a new class agent within 45 days from �the date of this decision.� The
45th day following the date of the decision, April 16, 1999, was Monday,
May 31, 1999. Law firm 3 had notice of the April 16, 1999 decision as
indicated by its May 6, 1999 letter to the agency in which it notified
the agency of its representation on behalf of class members H and R
and indicated that it would provide a designation of class agents on or
before the deadline the decision specified.
The Commission denies the motion for intervention filed by class members
H and R because the agency does not have the authority under 29 C.F.R. �
1614.204 to establish its own procedure for choosing a class agent.
However, even if the agency had the authority to set up such a procedure,
it does not appear that class members H and R satisfied the requirements
of the agency's procedure by timely filing their class agent designations
within 45 calendar days of the date of the agency's decision.
Commission Jurisdiction to Address this Appeal
Although not raised by either party, a threshold question that must be
addressed is the Commission's authority to accept this appeal. As law
firm 3 correctly points out, EEOC Regulation 29 C.F.R. Part 1614 does
not specifically authorize an interlocutory appeal from an administrative
judge's decision to disqualify a class agent.
However, the Commission has the inherent authority to enforce its
Part 1614 Regulations and has exercised this authority in response to
various violations. See, e.g., DaCosta v. Department of Education, EEOC
Appeal No. 01995992 (February 25, 2000) (agency sanctioned for failure
to investigate a complaint as required by Commission regulation); and
Edwards v. United States Postal Service, EEOC Request No. 05950708
(October 31, 1996) (Commission authority to remedy a violation
of 29 C.F.R. � 1614.605(b)(2) by awarding official time without a
finding of discrimination). The Commission also is authorized by 29
C.F.R. � 1614.503 to enforce its decisions and orders. See Terrell
v. Department of Health and Human Services, EEOC Request No. 04950018
(November 7, 1996) (awarding attorney's fees and costs for filing a
petition for enforcement following the agency's failure to comply with
the Commission's order to conduct a supplemental investigation within 90
days); Stull v. Department of Justice, EEOC Appeal No. 01942827 (June
15, 1995) (upholding an award of attorney's fees and costs incurred in
an attempt to have an adverse inference drawn where the agency failed
to comply with an administrative judge's order to produce documents).
The Commission exercises its inherent authority in the instant case to
correct the agency's unauthorized issuance of a decision disqualifying
the complainant as class agent.
Reversal of the Agency's Unauthorized Issuance of a Decision Disqualifying
the Complainant As Class Agent
Administrative Judge 2 remanded class complaint 1 to the agency with
instructions that the complaint be held in abeyance for 45 calendar
days. Under the terms of the remand, the agency was required to return the
complaint to Administrative Judge 2 if another class agent was identified
within 45 calendar days, or, if not, to dismiss the complaint pursuant
to 29 C.F.R. � 1614.107(g). In addition, the EEOC regulation in
effect at the time of the agency's decision, 29 C.F.R. � 1614.204(7),
authorized the agency to accept or dismiss a class complaint, but did not
authorize the agency to issue a decision disqualifying the class agent.
The regulation currently in effect, 64 Fed. Reg. 37,644, 37,658 (1999) (to
be codified at 29 C.F.R. � 1614.204(7)), and applicable to this appeal,
also does not authorize the agency to issue a decision disqualifying the
class agent. Accordingly, it is the decision of the Commission to MODIFY
the agency's April 16, 1999 decision by REVERSING its disqualification
of the complainant as class agent for class complaint 1. The agency's
decision to dismiss class complaint 2, which has not been appealed,
remains the final decision of agency on class complaint 2.
Administrative Judge 2's Remand to the Agency Improper
The Commission also finds that Administrative Judge 2 erred in remanding
class complaint 1 to the agency to permit CCAAC to designate a new
class agent. The EEOC regulation in effect at the time of the agency's
decision, 29 C.F.R. � 1614.204(7), authorized an administrative judge to
transmit to the agency a written recommendation on whether to accept or
dismiss a class complaint. It did not authorize a remand of the class
complaint for any other purpose. Similarly, the regulation currently
in effect, 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified at 29
C.F.R. � 1614.204(7), and applicable to this appeal, authorizes an
administrative judge to transmit to the agency a decision to accept or
dismiss a class complaint. Moreover, it was not proper for Administrative
Judge 2 to authorize CCAAC to designate a new agent. First, there
is no indication in the record that the complainant sought EEO class
complaint counseling as a representative of CCAAC. Second, even if the
complainant had attempted to file the complaint on behalf of CCAAC,
under 29 C.F.R. Part 1614, unlike the Commission's prior regulation,
29 C.F.R. Part 1613, only aggrieved persons, not organizations, may
file discrimination complaints.<8> Finally, Administrative Judge 2 was
instructed by the Commission's prior Order in this case to determine
whether class complaint 1 satisfied the commonality, typicality, and
numerosity class complaint requirements.
Having reversed the agency's disqualification of the complainant as class
agent for class complaint 1, and having determined that Administrative
Judge 2 improperly remanded class complaint 1 instead of issuing a
class certification decision, the Commission next addresses whether the
requirements for a class complaint have been satisfied.<9>
Class Complaint Requirements
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.
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). Class complainants are not
required to prove the merits of their claims at the class certification
stage; however, they are required to provide more than bare allegations
that they satisfy the class complaint requirements. Mastren v. United
States Postal Service, EEOC Request No. 05930253 (October 27, 1993).
Factors to be considered include whether the practice at issue affects
the whole class or only a few employees, the degree of local autonomy or
centralized administration involved, and the uniformity of the membership
of the class in terms of the likelihood that the members' treatment will
involved common questions of fact. Id. It is important to resolve the
requirements of commonality and typicality prior to addressing numerosity
in order to determine the appropriate perimeters 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 correct focus in determining whether the class is sufficiently
numerous for certification purposes is on the number of persons affected
by the agency's allegedly discriminatory practices and who thus may
assert claims. Moten v. Federal Energy Regulatory Commission, EEOC
Request No. 05960233 (April 8, 1997). 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).
The fact that potential class members no longer are employed by the
defendant employer, or that those employees who remain may have a natural
fear or reluctance to bring an action on an individual basis, may also be
significant factors when deciding whether the numerosity requirement has
been satisfied. Arkansas Education Association v. Board of Education,
Portland, Arkansas School District, 446 F.2d 763, 765-766 (8th Cir. 1971)
(declining to overturn the certification of a class of 20 teachers and
former teachers alleging salary discrimination based on race).
In order to satisfy the adequacy of 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).
Provisional Certification of Class Complaint 1
After a review of the entire record, including the appeal submissions
of the parties, the Commission finds that class complaint 1 should be
certified as a class complaint on a provisional basis. See Moten, supra.
The Commission certifies the class complaint provisionally in light of
the agency's representation that the agency, as organized in 1995, had
no fewer than fourteen personnel offices. The record does not indicate
whether the agency continues to have fourteen personnel offices, and,
if so, how many of these personnel offices have responsibility for the
personnel actions at issue in this case. If more than one personnel
office services the agency's headquarters offices in the metropolitan
area of the District of Columbia, it is possible that the alleged
discrimination occurs in offices serviced by one personnel office but
not in offices serviced by another personnel office. The record also
does not disclose how much autonomy, if any, the agency's individual
Headquarters' offices exercise in the personnel matters at issue in this
class complaint, and whether the amount of autonomy varies from one office
to another. It appears that the agency has exclusive control of this
information which has not yet been provided to the complainant and the
Commission. While such information could be important, particularly as it
pertains to the commonality and typicality class complaint requirements,
it is the decision of the Commission not to delay the processing of class
complaint 1 any further based on mere speculation as to the potential
effect of such information. However, the Commission's Remand Order
specifies that after completion of discovery pursuant to 29 C.F.R. �
1614.204(f), one or both parties may move to narrow the coverage of the
class complaint and/or to establish additional subclasses. See Hines,
et al. v. Department of the Air Force, EEOC Request No. 05940917 (January
29, 1996) (an administrative judge has the latitude 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).
The Commission finds that the class should be defined as composed of
African-American, non-supervisory employees and former employees of the
agency's Headquarters' offices in the metropolitan area of Washington,
D.C., who allegedly have been denied career advancement to one or
more white collar positions in the agency's Headquarters' offices at
grade levels GS-9 through GS-15, or equivalent level white collar non-GS
positions, and who may have been denied related promotional opportunities
in those same offices, based on their race during the period of time
beginning two years prior to the filing of the class complaint on February
22, 1995, and continuing to the date a final determination is rendered
on the class complaint claim. Related promotional opportunities include
training, assignments, details, awards, etc., that would have enhanced a
class member's qualifications for promotion to such a position, whether
the promotion would have been a career ladder promotion, a competitive
promotion, or an accretion of duties promotion.
The Commission limits the class to employees who have been denied career
advancement opportunities related to white collar positions at grade
levels GS-9 through GS-15, or equivalent level white collar non-GS
positions, because existing information suggests that significant
numbers of African-American employees have been denied advancement
to such positions and, thus, that common questions of fact and law
exist as to those positions. The Commission limits the class claim to
discrimination based on race because the record does not indicate that
significant numbers of class members have allegedly been retaliated
against based on their prior EEO activity.
The Commission finds that the class complaint states a claim that the
agency has delayed and limited, and continues to delay and limit, the
career advancement of class members because of their race. The complaint
identifies a number of means by which the agency accomplishes the
alleged career advancement discrimination, including discriminatory
selection decisions, discriminatory performance appraisals, and
discriminatory denials of awards, career enhancing work assignments,
and timely training for advancement. Subsequent submissions identify
other mechanisms such as lower grade-level placements at hire, delays in
awarding career ladder promotions, and promoting white employees based
on accretion of duties, thereby, foreclosing competitive selections.
However, the Commission finds that the means by which the agency
allegedly accomplishes the alleged career advancement discrimination
should not be treated as independent claims of discrimination under 29
C.F.R. Part 1614. See EEOC Management Directive (MD) 110, as revised
(November 9, 1999), Example 3 and Practice Tip at 5-7. Instead, proven
instances, if any, in which white employees have been given preferential
treatment over African-American employees in ways that facilitated their
career advancement, e.g., in the provision of developmental training,
career-enhancing assignments, outstanding performance appraisal ratings,
and awards, should be treated as relevant evidence supporting the class
claim of career advancement discrimination. See Lee v. Department of
the Army, EEOC Appeal No. 01990384 (February 23, 2000).
Commonality
Based on the existing record, the Commission finds that class complaint
1 satisfies the class complaint commonality requirement. The agency has
acknowledged that it has issued a Department Administrative Order (DAO)
implementing the federal merit promotion policy agency-wide. The agency
admittedly also has promulgated agency-wide principles governing the
issuance of performance appraisals. Thus, it appears that common
standards govern agency promotion and performance appraisal decisions
in the Washington, D.C. metropolitan area. In addition, the Commission
takes administrative notice of the information set forth in the Equal
Employment Opportunity Commission's Annual Report on the Employment of
Minorities, Women and People with Disabilities in the Federal Government
for the Fiscal Year [FY] 1998 to find that there exist questions of fact
and law in common to the members of the class as to whether the agency
has denied African-American employees career advancement opportunities
to white-collar positions, GS-9 through GS-15 and equivalent non-GS
grades, due to their race. For example, the average white collar
grade for the agency's white employees in FY 1998 was 10.60 and for
the agency's black employees was 8.78. Table I-16. The discrepancies
in grade level were also evident in professional positions where the
average grade for white agency professional employees in FY 1998 was
12.77 while the average grade for black agency professional employees
was 11.62. Table I-17. An examination of Table I-10 reveals that the
percentage of black employees in the agency's white collar positions
GS-9 and above in FY 1998 declines as the grade level increases.<10>
For example, in FY 1998 black employees held 41.69% if GS-7 positions,
36.93% of GS-8 positions, 27.05% of GS-9 positions, and 27.15% of GS-10
positions. The declines were even greater in typically professional level
positions in the agency where in FY 1998 black employees held only 13.51%
of GS-11 positions, 14.25% of GS-12 positions, 9.60% of GS-13 positions,
7.02% of GS-14 positions, and 4.41% of GS-15 positions. In contrast,
the percentage of white employees in the agency's white collar positions
increased in the higher graded positions. For example, in 1998 white
employees occupied 59.02% of GS-9 positions, 76.61% of GS-11 positions,
76.93% of GS-12 positions, 80.48% of GS-13 positions, 81.76% of GS-14
positions, and 88.60% of GS-15 positions. These grade level differences
were even more pronounced when class complaint 1 was filed in FY95 and
during the two-year period preceding the complaint filing. Table I-10.
The record also contains several affidavits and over forty unsworn survey
forms that were completed in September 1998 which indicate that numerous
individual class members believe they have been denied advancement-related
opportunities, including promotions, awards, outstanding performance
appraisal ratings, and enhancing work assignments, based on their race.
The record further indicates that from October 1992 to August 1998,
African-American employees filed 492 formal complaints of discrimination
alleging discrimination based on race (African-American) including 108
complaints involving the Patent and Trademark Office (PTO), 103 complaints
involving the Bureau of the Census (CENSUS), 100 complaints involving the
National Oceanic and Atmospheric Administration (NOAA), 48 complaints
involving the Office of the Secretary (O/S), 32 complaints involving
the International Trade Administration (ITA), 27 complaints involving
the National Telecommunications & Information Administration (NTIA),
and the remainder involving seven other agency offices. In finding that
the commonality requirement for a class complaint has been satisfied
provisionally, the Commission recognizes that the class agent and law
firm 2 have not had access to pre-certification discovery. Hines, et
al. v. Department of the Air Force, EEOC Request No. 05940917 (January
29, 1996). The Commission also recognizes that the cited information
involves nation-wide statistics which may or may not precisely reflect
the situation in the agency's Headquarters' offices. However, the
agency has exclusive possession of this information which it has not
yet provided to the complainant and the Commission.<11>
Typicality
The Commission also finds that the complainant, a GS-11 Export Compliance
Specialist in the Bureau of Export Administration (BXA), allegedly
possesses the same interest and has suffered the same injury as the
members of the class. Specifically, she is an African American who has
been employed by the agency in a Headquarters' office in the Washington,
D.C., metropolitan area for over fifteen years but has not advanced beyond
the GS-11 level, even though her job series allegedly has growth potential
to the GS-14 level and she has applied for several GS-12 Export Compliance
Specialist vacancies. The complainant also alleges that based on her
race she has been denied training and lateral career enhancing positions,
has not been provided career enhancing assignments, and has been given
inferior performance appraisals. Therefore, the Commission finds that
the class agent satisfies the class complaint typicality requirement.
The agency contends that this appeal is nothing more than an attempt to
salvage the complaint of a person who already has lost her individual
complaint in United States District Court, citing Janet Howard v. William
Daley, Secretary, U.S. Dep't. of Commerce, Civil Action No. 97-2877
(D.D.C. March 30, 1999). Therein, the court granted the agency's motion
for summary judgment, finding that the complainant had failed to prove
that the agency's articulated reasons for her October 1996 overall
performance rating of �fully successful� were a pretext for retaliation.
The Commission finds no merit in the agency's appeal contention.
A finding of discrimination in class complaint 1 could not alter the
court's findings on the complainant's 1996 performance appraisal in
as much as the court's findings are binding on both parties under the
doctrines of res judicata and collateral estoppel.
In addition, if the agency believed that the complainant's 1996
performance appraisal claim raised the same claim as class complaint 1,
the agency was obligated to hold the complainant's individual complaint in
abeyance pending disposition of the class complaint. See Green v. Social
Security Administration, EEOC Appeal No. 01984387 (November 24, 1999).
EEOC Management Directive (MD) 110 (October 22, 1992) at 7-3, as minimally
revised by EEOC MD 110 (November 9, 1999), at 8-4, has consistently
provided that an individual complaint that is filed before or after the
class complaint is filed and that comes within the definition of the
class claim(s), will be subsumed within the class complaint.
The Commission also finds that the fact that the complainant failed
to prove that the agency issued her a �fully successful� performance
appraisal rating in 1996 in retaliation for her prior EEO activity, does
not render the complainant's current discrimination claims atypical of
the class complaint claims. As indicated above, the gravamen of class
complaint 1 is that the agency's subjective decision making has prevented
African-Americans as a group from advancing according to their merit,
through discriminatory promotion denials and other discriminatory
employment decisions that have adversely affected job advancement,
including performance evaluations, job assignments, training, and awards.
While performance evaluations are specified as one mechanism by which the
agency prevents African-Americans from advancing according to their merit,
the thrust of the class complaint is the discriminatory non-advancement
of African-Americans. The complainant's non-advancement was not at
issue in the complainant's civil action.<12>
However, if on remand, discovery discloses that the complainant does not
have any unresolved individual claims of discrimination, then law firm
2 would be required to designate a new class agent or agents, which the
administrative judge should approve if the typicality requirement were
satisfied.
Numerosity
The Commission finds that the class as defined above satisfies the
numerosity requirement for a class complaint. Over forty African-American
non-supervisory employees of the agency's Headquarters' offices in the
metropolitan area of Washington, D.C., completed survey forms wherein
they alleged that they have been denied career advancement to one or more
white collar positions at the GS-9 through GS-15 and equivalent grade
levels, and/or related promotional opportunities, based on their race
during the period of time beginning two years prior to the filing of the
class complaint on February 22, 1995. That the number of class members
is greater than 40 is indicated by the filing of over 400 individual
complaints of racial discrimination filed by African-American employees
alleging discrimination based on race from February 1993 to August 1998.
While the Commission does not presume that all of these complainants
were filed by Headquarters' employees, it appears that a significant
number of the complaints involved Headquarters' employees. If not,
the agency, which has exclusive control over this information, easily
could have informed the complainant and the Commission. These numbers
also do not reflect the number of class members who have not filed
individual complaints and who have not completed survey forms for fear
of retaliation by agency officials.
Adequacy of Representation
Based on the existing record, the Commission finds that the complainant
has satisfied the adequacy of representation requirement. First, the
record does not demonstrate that the complainant has a conflict with
the class. It is true that the complainant and class member H, who
initially worked closely with the complainant in the processing of class
complaint 1, no longer work well together. However, as Administrative
Judge 2 correctly found, only the complainant signed class complainant
1 and, therefore, only the complainant was properly designated as the
class agent. Thus, the complainant properly sought legal representation
for the class without consulting class member H. Contrary to the
opinion of Administrative Judge 2, the fact that class member H served
as President of CCAAC gave her no more right to information concerning
the processing of the class complaint, or input into choosing a legal
representative, than any other class member. As discussed above,
under 29 C.F.R. Part 1614 only aggrieved persons, not organizations,
may file discrimination complaints. The Commission also observes that
the complainant did not withhold information from the class. In fact,
Administrative Judge 2 specifically recognized that the complainant
has been effective in publicizing the class complaint and in garnering
support for it from agency employees and civil rights organizations,
and suggested that she continue in that role. Second, at the time of
the complainant's disqualification, she was represented by law firm 1
which has experience in administrative and judicial class litigation.
In disqualifying the complainant from service as class agent,
Administrative Judge 2 opined that the complainant may possibly bear
some responsibility for an alleged misuse of litigation funds by class
member H, because the complainant had served as Treasurer of CCAAC.
However, the record does not contain any evidence that class member
H embezzled litigation funds. Compare Darms v. McCullough Oil Corp.,
720 F.2d. 490, 493 (1983) (uncontroverted evidence that one of the named
plaintiffs negligently misapplied funds collected for litigation support).
The record also does not contain even a bare allegation, much less
evidence, that the complainant failed to carry out her responsibilities
as Treasurer of CCAAC. The record also does not contain evidence of
misrepresentation and irresponsibility comparable to that relied upon
by the court in Smyth v. Carter, 168 F.R.D. 28, 33-34 (W.D. Vir. 1996),
to find that the plaintiffs would not be adequate representatives of a
proposed class.
CONCLUSION
It is the decision of the Commission to REVERSE the agency's
disqualification of the complainant from serving as class agent for
class complaint 1; to provisionally certify a class; to REMAND the class
complaint to the EEOC's Washington Field Office for further processing
pursuant to 29 C.F.R. � 1614.204(f) et seq.; to ORDER the agency to
notify class members of the provisional class certification; to ORDER
the agency to transfer a complete class complaint record to the EEOC's
Washington Field Office; and to ORDER the agency to hold in abeyance
individual complaints filed by class members raising one or more claims
subsumed in class complaint 1.
ORDER
The Commission hereby CERTIFIES a class composed of African-American,
non-supervisory employees and former employees of the agency's
Headquarters' offices in the metropolitan area of Washington, D.C., who
allegedly have been denied career advancement to one or more white collar
positions in the agency's Headquarters' offices at grade levels GS-9
through GS-15 levels, or equivalent level white collar non-GS positions,
and who may have been denied related promotional opportunities in those
same offices based on their race during the period of time beginning
two years prior to the filing of the class complaint on February 22,
1995, and continuing to the date a final determination is rendered on
the class complaint claim. Related promotional opportunities include
training, assignments, details, awards, etc., that would have enhanced a
class member's qualifications for promotion to such a position, whether
the promotion would have been a career ladder promotion, a competitive
promotion, or an accretion of duties promotion.
The Commission REMANDS the class complaint to the EEOC's Washington Field
Office for assignment to an administrative judge and further processing
pursuant to 29 C.F.R. � 1614.204(f) et seq.
The Commission ORDERS the agency to notify potential class members<13>
of the provisional class certification as required by 29 C.F.R. �
1614.204(e) within fifteen (15) calendar days of the date this decision
becomes final.
The Commission ORDERS the agency to transmit a complete copy of the class
complaint 1 record to the Washington Field Office within fifteen (15)
calendar days of the date this decision becomes final. The record shall
include a copy of the notice sent to class members, a description of the
means used to notify the class members, a list of all class members who
were notified and the means by which they may be contacted inexpensively
by the class agent or class representative without an invasion of their
personal privacy, e.g., via agency E-mail or by office telephone.
After completion of discovery pursuant to 29 C.F.R. � 1614.204(f),
one or both parties may move to narrow the coverage of the class
complaint and/or to establish additional subclasses. See Hines, et
al. v. Department of the Air Force, EEOC Request No. 05940917 (January
29, 1996) (an administrative judge has the latitude 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). If additional
subclasses are established, law firm 2 shall designate appropriate
subclass agents who are willing to serve, and move for their approval
by the administrative judge prior to the hearing on, or resolution of,
class complaint 1. The administrative judge's rulings on such motions
shall not be the subject of an interlocutory appeal.
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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 20, 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,
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.
2The complaint listed the complainant named in the case caption above
and two other class members, Joan Hall (hereinafter referred to as class
member H) and Edward Reed (hereinafter referred to as class member R)
as class agents. However, only the complainant signed the February 22,
1995 formal class complaint.
3Counsel noted that class member R had withdrawn from serving as class
agent.
4The complainant, not law firm 2, filed the October 14, 1998 statement.
5Administrative Judge 2 noted that the Commission's prior decision found
only that law firm 1, which no longer represented the class, satisfied
the adequacy of representation requirement.
6Administrative Judge 2 found that the complainant had withheld
information from class member H regarding the processing of the
complaint; had requested that all communications from the EEOC
regarding the complaint be directed to her rather than to class member
H; and had interviewed and retained an attorney to represent the class
without consulting class member H, even though the two had shared this
responsibility in the past.
7The agency did not address Administrative Judge 2's finding that, for the
same reason, class member R was not a class agent for class complaint 1.
8Compare 29 C.F.R. �1614.105(a) with 29 C.F.R. �1613.212 (1991).
9The Commission has the authority to address the class certification
question on appeal even though the parties have not raised the issue.
See Charles v. Department of the Navy, EEOC Request No. 05880259 (November
29, 1988).
10Table I-10 includes equivalent non-GS positions together with the GS
positions.
11The Commission further recognizes that a statistical analysis of
promotion decisions would be relevant to a determination on the merits
of the class claim. See also, 29 C.F.R. � 1607.4 which sets forth
some of the record-keeping requirements applicable to federal agencies.
29 C.F.R. � 1607.2A.
12The Commission notes that the complainant proceeded without an attorney
in her civil action.
13Potential class members include all African-American, non-supervisory
employees and former employees of the agency's Headquarters' offices in
the metropolitan area of Washington, D.C., who could have been denied
career advancement to one or more white collar positions in the agency's
Headquarters' offices at grade levels GS-9 through GS-15, or equivalent
level white collar non-GS levels, during the period of time beginning
two years prior to the filing of the class complaint on February 22,
1995, and continuing to the date of the class notification.