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.