John Moore Jr., et al., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 17, 2000
01984533 (E.E.O.C. Apr. 17, 2000)

01984533

04-17-2000

John Moore Jr., et al., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John Moore Jr., et al. v. United States Postal Service

01984533

April 17, 2000

John Moore Jr., et al., )

Complainant, )

)

v. ) Appeal No. 01984533

) Agency No. HZ000996

William J. Henderson, ) Hearing No. 260-97-9182X

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On May 18, 1998, complainant filed an appeal with this Commission from

a final agency decision (FAD) dated April 17, 1998, pertaining to his

class complaint alleging unlawful employment discrimination in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.<1> The appeal is accepted for review in accordance with 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 vacates the agency's

determination that the proposed class cannot be certified for further

processing.

BACKGROUND

Complainant filed a formal complaint, dated February 12, 1996, on

behalf of a class consisting of African-American employees at the

Main Post Office in Madison, Wisconsin. In this complaint, complainant

alleged that African-American employees were terminated as Casual (CE) or

Temporary Employees (TE) before they became eligible for career positions.

The complaint also stated that complainant's supervisor used Caucasian

"informants" to find bogus reasons to terminate class members. Further,

complainant contended that certain policies, such as a "no-talking

policy," were enforced exclusively against African-Americans.<2>

Subsequently, five other individuals signed statements asking to join

the proposed class.

Pursuant to EEOC Regulations, the complaint was referred to an EEOC

Administrative Judge to determine whether the class should be certified

or dismissed. On March 31, 1998, the AJ issued a decision finding that

the class should not be certified. In her decision, the AJ acknowledged

that the potential class could be too numerous to consolidate,<3> but

found that the individuals named in the class complaint did not share

common facts or typical injuries. Further, the AJ found that complainant

could not adequately represent the class if it were certified.

With regard to common facts, or "commonality," the AJ noted that the

claims of each individual in the class involved different supervisors,

different comparative employees, and no proof of a common pattern or

practice. The AJ also noted that the named class members suffered widely

different injuries, and therefore failed to establish "typicality."

Specifically, the AJ noted that complainant was hired as a CE in

January 1993, moved to a TE appointment in 1994, and was fired for

poor performance in January 1995. Class agent-2 was terminated for

information placed on his application, and may have a disability claim

because he was not offered the same assistance as Caucasian employees.

Class agent-3 was denied the opportunity to become a career employee,

but was not terminated. He also claimed to have been treated differently

with regard to National Guard leave. Class Agent-4 was laid-off in 1973

and never called back to work despite assurances to the contrary at the

time he was released. Class Agent-5 was denied the opportunity to return

to her supervisory position, and her authority was undermined with regard

to Caucasian employees.<4> Finally, class agent-6 was terminated shortly

after notifying the Occupational Safety and Health Administration (OSHA)

of possible safety violations.

Concerning the adequacy of representation, the AJ concluded that in light

of complainant's individual claim, he could not represent his own claims

and those of the class without conflict. The AJ also expressed concern

about complainant's statement that he had spent much time and money on the

case, and had no intention of hiring an attorney to represent the class.

The agency adopted the AJ's decision in its April 17, 1998 FAD.

On appeal, complainant argues that the AJ's use of the other class members

who he �found by word of mouth and personal contact," was improper.

He contends that commonality and typicality should be discerned from

the entire potential class. He further asserts that it is impossible

to know commonality and typicality without knowledge of all potential

class members.

Complainant argues that he was not given sufficient opportunity to

conduct discovery before the AJ determined the case; he also claims

that the agency ignored his requests for information, and that the

AJ wrongfully denied his second set of interrogatories. Further, he

claims that all of the named class members had direct experience with

discriminatory application of the no-talking policy. Complainant explains

that African-American employees did not have an opportunity to learn how

to do their jobs because, unlike other groups, they were not allowed to

discuss their duties.

Complainant further argues that most Caucasian career employees started

as CE or TE employees, and were converted to career status. Of the twenty

or so African-American career employees at the Madison facility, however,

all but one transferred in as a career employee from another facility.

Further, complainant contends that class agent-2 was a TE when he was

terminated. He asserts that class agent-2 performed the same duties as a

CE for four years without incident, but once he was within six months of

eligibility for career status, he was terminated. Finally, complainant

notes that the regulations do not require the class representative to be

an attorney, but complainant agreed that representation by an attorney

would be appropriate if many employees joined the class.

The record includes complainant's two requests for discovery. In his

first request, complainant asked for access to the personnel files of all

"former" employees from the "relief period." Complainant also sought a

list of employees by job classification (Career v. CE or TE) and race,

and the names of any African-Americans who filed EEO complaints in

the district. Since the AJ refers to this information in her decision,

this request must have been met at least in part. However, the agency's

response is not included with the present record.

In complainant's second request, he sought information concerning EEO

complaints by African-Americans working in Milwaukee, and information

given to a United States Senator by the National Association for the

Advancement of Colored People (NAACP) concerning race discrimination

in a Milwaukee facility. Complainant contended that the information

was relevant because, inter alia, management at the Madison facility

reported to superiors in the Milwaukee facility. The AJ refused to

submit the second set of interrogatories to the agency.

The Counselor's Report also provides no useful information. The Counselor

failed to interview complainant or any class agent, and only took

a preliminary statement from complainant. The report contains no

information of who terminated what employees from which positions for

what reasons.

ANALYSIS AND FINDINGS

The purpose of class action complaints is to economically address claims

"common to [a] class as a whole . . . turn[ing] on questions of law

applicable in the same manner to each member of the class." General

Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982)

[citations omitted]. Under EEOC Regulations, a class complaint must

allege that: (i) the class is so numerous that a consolidated complaint

concerning the individual claims of its members is impractical; (ii) there

are questions of fact common to the class; (iii) the class agent's claims

are typical of the claims of the class; and (iv) the agent of the class,

or if represented, the representative, will fairly and adequately protect

the interests of the class. 29 C.F.R. � 1614.204(a)(2). The agency

may reject a class complaint if any of the prerequisites are not met.

See Garcia v. Department of Justice, EEOC Request No. 05960870 (October

10, 1998).

A class agent must be part of the class he hopes to represent, and must

"possess the same interests and suffer the same injuries" as unnamed

class members. Falcon, 457 U.S. at 156. Questions of common facts

and typical claims often overlap; thus, in analysis, "commonality and

typicality requirements tend to merge." Id. at 157 note 13.

Commonality and/or typicality can be established by information that other

employees were discriminated against in the same manner. See Pinckney

v. Department of the Navy, EEOC Request No. 05950751 (February 27, 1998)

(finding no commonality because affidavits of six class members involved

different reasons for terminations and benefit denials.) Both complainant

and class agent-2 were terminated as they approached eligibility for

career positions. Both were serving in TE positions at the time they

were terminated. There is no evidence, and complainant does not contend,

that the other named individuals were TE employees, or had similar claims.

Therefore, class agents 3-6 could not be part of a class of TE employees

fired shortly before becoming eligible for career positions.

Presumably, a class of terminated TE African-American employees would

stretch across different supervisors and teams within the facility.

Such claims of "across the board"discrimination require evidence of

some common policy or practice such as biased testing procedures,

centralized decision-making, or a subjective decision-making procedure

to justify class certification. See Falcon, 457 U.S. at 159, note 15;

Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05960233

(April 8, 1997) (finding that evidence of centralized promotion

policy was sufficient to justify certification of a class consisting

of workers from more than one job group, at different facilities).

Although complainant contends that the termination of African-American

employees was a common practice, the record contains no evidence that a

centralized decision-making authority effected these decisions, or that

the same policy was applied by numerous supervisors.

Complainant requested information concerning decision-making authority,

and also requested information of job classifications and terminations

by race. Complainant also requested to see the personnel folders,

which would have provided evidence of the reason and authority for

terminations. But this information was not included in the record.

Absent such evidence, the Commission cannot determine whether commonality

or typicality existed.

Complainant argues on appeal that application of the no-talking policy

affected all of the named class members. However, the record contains

no statement from any of the class members in this regard. The record

also contains no information of whether this policy emanated from a

centralized policy maker, or was applied in a certain manner by agreement

across supervisory lines. Absent such evidence, again, the Commission

cannot determine the propriety of the agency's finding of no commonality

or typicality.

The AJ also found that numerosity existed because 145 African-American

employees had been terminated, and numerous African-Americans were hired

each year to serve as CE or TE employees. This information, presumably,

was garnered in discovery, but does not appear in the record. Therefore,

the Commission cannot find that numerosity requirements have been met.

With regard to adequacy of representation, the Commission notes that class

complaints are very sophisticated and technical, and require specialized

education and experience in most instances. Given the complete absence

of information in the record that should have been garnered in discovery,

and the AJ's misgivings with complainant's representation of the class,

the Commission strongly urges complainant to obtain an attorney with

class claim experience.

CONCLUSION

Accordingly, the agency's decision is VACATED, and the claim is REMANDED

for a supplemental investigation.

ORDER

The agency is ORDERED to perform the following:

Provide information concerning the number of career employees versus

the number of casual and temporary employees at the Madison, Wisconsin

Main Post Office during the time period relevant to this complaint.

This information must identify the race of career, casual, and temporary

employees. If this information is not readily available, then the agency

shall provide personnel records for the relevant time period.

With regard to temporary employees, the agency shall provide information

concerning the number of African-American employees terminated, and the

number converted to permanent status during the relevant time period.

The agency shall provide the same information for employees outside of

the identified protected group serving in temporary appointments during

the relevant time period.

To the extent that it is available, the agency shall provide the reasons

African-American employees were terminated, and whether their terminations

were affected by a centralized authority within the facility.

Within sixty (60) calendar days of the date this decision becomes final,

the agency must forward the entire record, including all information

collected in this supplemental investigation, to the appropriate EEOC

District Office. In its letter of transmittal, the agency shall request

that an Administrative Judge be assigned to determine whether the class

should be certified for further processing.

Additionally, the agency shall provide the Compliance Officer with a

copy of its transmittal notice as provided below.

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:

April 17, 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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

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.

2Complainant also filed an individual complaint alleging discrimination

based on age.

3The AJ noted that from January 1993 to January 1995, 145 African-American

employees were separated or terminated from the Madison facility, most

of whom were CE or TE workers.

4Class Agent-6 regained her supervisory authority through an order in

a separate discrimination complaint.