01A23926_r
12-05-2003
Karim M. Al-Haqq, et al. Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karim M. Al-Haqq, et al. v. United States Postal Service
01A23926
December 5, 2003
.
Karim M. Al-Haqq, et al.
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23926
Agency No. CC-609-0012-00
Hearing No. 210-AO-6316X
DECISION
Complainant, as class agent, filed this appeal with the Commission
concerning an agency final order dated June 18, 2002, rejecting the
captioned complaint for class certification.
Pursuant to Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. 2000e et seq., complainant, a Vehicle Operations
Assistant (VOA) at the agency's Chicago Bulk Mail Center in Forest Park
Illinois, filed a formal complaint dated February 15, 2000, on behalf of
himself and the putative class on the basis of race (African-American).
Therein, complainant claimed that he and other similarly situated
VOA's were required to perform functions that are duty requirements of
a Supervisor Transportation Network, EAS-16, and Network Specialist,
EAS-15. Complainant further alleged that this unequal pay practice has
been enforced for at least ten (10) years.
The agency transferred the complaint to the EEOC's Milwaukee District
Office to render a decision on class certification. On June 3, 2002,
an EEOC Administrative Judge (AJ) issued a decision rejecting the
class complaint for certification. In particular, the AJ found that the
requirements of commonality and typicality were not satisfied.
In its final order, the agency implemented the AJ's decision. The instant
appeal followed.
The purpose of the commonality and typicality requirements is to ensure
that class agents possess the same interests and suffer the same injury
as the members of the proposed class. See General Telephone Company
of the Southwest v. Falcon, 457 U.S. 147 (1982). In application, the
commonality and typicality prerequisites tend to merge and are often
indistinguishable. Id. Commonality requires that there be questions
of fact common to the class. The class agent must, therefore, establish
some evidentiary basis from which one could reasonably infer the operation
of an overriding policy or practice of discrimination. This can be done
through allegations of specific incidents of discrimination, supporting
affidavits containing anecdotal testimony from other employees against
whom an employer allegedly discriminated in the same manner as the class
agents, and evidence of specific adverse action taken. See Mastren
v. USPS, EEOC Request No. 05930253 (October 27, 1993).
Here, after careful review, the Commission determines that the AJ
correctly determined that complainant failed to meet the commonality
and typicality elements for certification. The AJ properly determined
that the complaint does not identify the race of the putative class
members; that it is unclear whether there are only 25 VOA's, as asserted
by complainant; and what percentage of the VOA's are African-American.
Moreover, the AJ properly determined that there are no specific instances
cited wherein any putative class member was subjected to alleged
unequal pay or whether only the African-American putative class member
was subjected to alleged unequal pay. Further, there is no information
presented from which to conclude that common questions of fact exist
among the claims of the putative class members.
Accordingly, we AFFIRM the agency's final order rejecting the class
complaint for class certification for failure to satisfy the requirements
set forth an 29 C.F.R. � 1614.204(a)(2).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 5, 2003
__________________
Date