01984974
02-29-2000
Laurie Passey et. al., Complainants, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Laurie Passey et. al. v. United States Postal Service
01984974
February 29, 2000
Laurie Passey et. al., )
Complainants, )
)
v. ) Appeal No. 01984974
) Agency No. CC-0017-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The named complainant timely filed an appeal with this Commission from a
final decision, dated April 29, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.204. <1> The Commission accepts the
appeal in accordance with EEOC Order No. 960, as amended. For the
reasons set forth below, the Commission finds that the complaint at
issue should be certified as a class complaint.
ISSUES PRESENTED
Whether the agency erred when it found that the complainants were
not allegedly aggrieved and also failed to satisfy the adequacy of
representation requirement for a class complaint.
BACKGROUND
After obtaining class complaint counseling, the named complainant filed
a class complaint on or about February 4, 1997, wherein she alleged that
the agency discriminated against a class of female part-time postmasters
in categories A-E, based on their sex and their participation in a prior
proposed class complaint, when it did not award then a $500 lump sum
bonus in December 1996. The agency forwarded the matter to the EEOC's
Washington Field Office for review by an Administrative Judge.
The Administrative Judge issued a decision, dated March 12, 1998,
wherein she recommended that the agency conditionally accept the
class complainant, subject to a showing of sufficient numerosity
after discovery. The Administrative Judge observed that the agency had
conceded that the commonality, typicality and numerosity requirements
for a class complaint had been met. The Administrative Judge found
purely speculative the agency's contention that the class representative,
a law firm, would not appropriately represent all class members because
purportedly the firm also represented the National League of Postmasters.
The Administrative Judge concluded that the named complainant had met her
burden of showing adequacy of representation provided that she submits
more detailed information on the attorney's qualifications to represent
a Title VII class.
The final agency decision found that the Administrative Judge failed to
address the agency's contention that the complainants lacked standing to
pursue this matter. The agency relied on the Commission's prior decision
in Votolato v. United States Postal Service, EEOC Appeal No. 01966365 (May
5, 1997), when holding that the complainants were not aggrieved employees
because they stated a generalized grievance shared by a substantial number
of their coworkers. The agency acknowledged that the agency had no basis
for concluding that the class attorneys lacked sufficient experience
to represent the class. The agency determined, however, that counsel
for the class were also counsel for the National League of Postmasters,
which was one of two competing postmaster organizations which consulted
with the agency, and which was sponsoring this litigation. The decision
suggested that a potential conflict of interest existed because the
League had taken unspecified positions with the agency that conflicted
with the class claim. The decision expressed concern because not all
postmasters were members of the League and because the League did not
even represent a majority of postmasters. The decision also indicated
that if counsel focused on the claims of League members and slighted
the claims of the other postmasters, the other postmasters would not
be bound by the judgment. The decision indicated that the appearance
of potential conflict had not been dispelled in light of correspondence
which purportedly discouraged non-member postmasters from participation
in the class. The decision further indicated that the other postmaster
organization, the National Association of Postmasters of the United States
(NAPUS), had filed a "similar" class claim. After dismissing the class
complaint, the agency dismissed the individual complaint, again citing
Votolato v. United States Postal Service, EEOC Appeal No. 01966365
(May 5, 1997).
On appeal, counsel for the proposed class contends that the Votolato
decision is not applicable to class complaints and, therefore, any error
by the Administrative Judge in not addressing the Votolato contention
was harmless. Counsel contends that the claim raised by the complainants
alleges a specific harm to a term, condition and/or privilege of each
class members' employment. Counsel points out that the agency did not
contest the Administrative Judge's findings that the class complaint
satisfies the requirements of commonality and typicality, and numerosity.
Counsel further contends that it has an ethical obligation to vigorously
represent all class members regardless of League membership.
In response, the agency relies on the reasoning set forth in the final
agency decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.204(a)(1) defines a class as a group of
employees, former employees or applicants for employment who allegedly
have been, or are being, adversely affected by an agency personnel
management policy or practice that discriminates against the group on
the basis of their race, color, religion, sex, national origin, age, or
disability. EEOC Regulation 29 C.F.R. �1614.204(a)(2), modeled upon Rule
23 of the Federal Rules of Civil Procedure, defines four requirements that
must be satisfied for a class complaint to be certified: (i) the class
is so numerous that a consolidated complaint of the members of the class
is impractical; (ii) there are questions of fact common to the class;
(iii) the claims of the agent of the class are typical of the claims
of the class; and (iv) the agent of the class, or, if represented, the
class representative, must fairly and adequately protect the interests
of the class. EEOC Regulation 29 C.F.R. �1614.204(d)(2) provides that a
class complaint may be dismissed if it does not meet the four requirements
of a class complaint or for any of the procedural grounds for dismissal
set forth in 29 C.F.R. �1614.107. Class complainants are not required
to prove the merits of their claims at the class certification stage;
however, they are required to provide more than bare allegations that
they satisfy the class complaint requirements. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993).
The purpose of the commonality and typicality requirements is to ensure
that the class agents possess the same interest and suffer the same
injury as the members of the class. General Telephone Company of the
Southwest v. Falcon, 457 U.S. 147, 156 (1982); East Texas Motor Freight
System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1979). It is important to
resolve the requirements of commonality and typicality prior to addressing
numerosity in order to determine the appropriate parameters and the size
of the membership of the resulting class. Harris v. Pan American World
Airways, 74 F.R.D. 24, 15 F.E.P. Cases 1640, 1646 (N.D. Cal. 1977). The
numerosity requirement of Rule 23 imposes no absolute limit for the size
of a class complaint, but rather, requires an examination of the facts
of each case. General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980).
In addition to number, other factors such as the geographical dispersion
of the class, the ease with which class members may be identified, the
nature of the action, and the size of each plaintiff's claim, are relevant
to the determination of whether the numerosity prerequisite of Rule 23
has been met. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030,
1038 (5th Cir. 1981). In order to satisfy the adequate representation
criterion, the class representative should have no conflicts with the
class and should have sufficient legal training and experience to pursue
the claim. Byrd v. Department of Agriculture, EEOC Request No. 05900291
(May 30, 1990). Competency of counsel is particularly important for the
protection of the rights of class members. Foster v. Department of the
Navy, EEOC Request No. 05920483 (December 23, 1992).
As a threshold matter, the Commission finds that the definition of the
proposed class, with one exception, is consistent with the definition of
a class set forth in 29 C.F.R. �1614.204(a)(1). Specifically, the class
is defined as all female part-time postmasters in categories A-E who did
not receive a $500 lump sum bonus in December 1996, allegedly based on
their sex and on their participation in a prior proposed class complaint.
As indicated above, EEOC Regulation 29 C.F.R. �1614.204(a)(1), applies
to alleged discrimination on the basis of sex. However, the Regulation
does not authorize class complaints which allege discrimination in
retaliation for the complainants' prior EEO activity. Therefore, the
Commission finds that the class should be defined as including all female
part-time postmasters in categories A-E who did not receive a $500 lump
sum bonus in December 1996, allegedly because of their sex.
The Commission also finds that the complaint satisfies the commonality
and typicality requirements for a class complaint set forth in 29
C.F.R. �1614.204(a)(2(ii) and (iii). The allegedly discriminatory
policy and practice was the failure to award class members a $500 lump
sum bonus in December 1996. The named complainant was affected by the
alleged discriminatory practice in the same manner as were the remaining
class members. The Commission further finds that the complaint satisfies
the numerosity requirement set forth in 29 C.F.R. �1614.204(a)(2)(1). In
support of this finding, the Commission takes administrative notice of
information contained in another appeal file, Abels et al and Edmondson et
al v. United States Postal Service, EEOC Appeal No. 01984749. That record
contains a list of over 500 female postmasters in categories A through
E, who were assigned to multiple locations throughout the United States
as of August 1997. Even if not all of the named postmasters held their
positions at the time of the alleged discrimination in the instant case,
it appears that the number of class members who held those positions in
December 1997 would render consolidation of the individual complaints
impracticable.
The Commission further finds that the class counsel have sufficient legal
training and experience to pursue the class claim based on information
contained in the other appeal file cited above. Both class counsel
have many years of experience in litigating individual EEO complaints.
One attorney represented the agency in employment matters for eight years.
The record also contains no evidence which indicates that counsel have
a conflict of interest with the class which they are ethically bound
to represent. As to the November 15, 1996 letter on which the agency
relies, the Commission finds that it properly advised non-League member
postmasters that in order to preserve their rights in another pay matter
in the event that a class is not certified, they should file their own
individual complaints of discrimination. At most, the November 15,
1996 letter failed to inform potential class members that if a class
was certified regarding the other pay matter, all class members would
be represented regardless of League membership.
Finally, the final agency decision relied on the Votolato decision in
holding that the complainants were not aggrieved employees because they
stated a generalized grievance shared by a substantial number of their
coworkers. The Commission's Votolato decision, issued by the Office of
Federal Operations, held that the complaint failed to state a claim
because Ms. Votolato had alleged a generalized grievance which was
shared by a substantial number of her coworkers. However, the Votolato
decision, concerning an individual complaint of discrimination, is not
applicable to class complaints which, by their nature, concern claims
that allegedly affect a substantial number of employees. In addition,
Ms. Votolato had not alleged that the agency treated her differently
than similarly situated employees because of her sex. Moreover, she
did not allege that the pay package which she was challenging had an
adverse impact on female employees. In the instant case, the complaint
challenges the agency's failure to award a $500 bonus to class members
allegedly because of their sex. The Commission finds that, thus,
each class member is allegedly aggrieved regarding a term, condition,
or privilege of her employment. Accordingly, the Commission finds that
the class complaint states a claim under 29 C.F.R. Part 1614.
Having determined that the complaint states a claim and satisfies the
requirements for certification as a class, it is the decision of the
Commission to reverse the agency's dismissal of the class complaint;
to certify the class complaint; to remand the complaint to the agency
for notification to class members as required by 64 Fed. Reg. 37,644,
37658 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.204(e)), and for forwarding to the Administrative Judge
for further proceedings under 29 C.F.R. �1614.204(f) et seq.
CONCLUSION
For the reasons stated above, the Commission REVERSES the final agency
decision; CERTIFIES the proposed class, and REMANDS the class complaint
for further processing as ORDERED below.
ORDER
1. The agency is ORDERED to forward the class complaint file, including
a copy of the class complaint and the Commission's decision on class
certification, to the EEOC's Washington Field Office, Washington, D.C.,
with a cover letter requesting that the class complaint be assigned
to an Administrative Judge for discovery proceedings and hearing.
The agency's cover letter shall inform the Washington Field Office that
the Commission's Order requires the class complaint, as certified by
the Commission, to be assigned as soon as possible to an Administrative
Judge, preferably to the Administrative Judge who issued the prior
decision. The request letter shall also inform the Washington Field
Office Birmingham District Office that the Administrative Judge shall
begin the discovery process under 29 C.F.R. � 1614.204(f) within ten
(10) calendar days of the date the case is assigned. The agency shall
complete these actions within ten (10) calendar days of the date this
decision becomes final.
2. The agency is ORDERED to notify potential class members (that is,
all females who were employed as part-time postmasters in categories
A through E during 1996), of the Commission's acceptance of the class
complaint in accordance with 29 C.F.R. �1614.204(e), as amended by 64
Fed. Reg. 37,644, 37,658 (1999), within fifteen (15) calendar days of
the date this decision becomes final. The notice shall contain the
law firm's name, mailing address, E-mail address, telephone number,
and facsimile number for the attorney who is representing the class.
3. The agency shall send to the Compliance Officer referenced below, and
to the attorney who is representing the class, copies of the agency's
class complaint notifications to class members and a copy of the letter
forwarding the complaint file to the EEOC's Washington Field Office
within fifteen (15) calendar days of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office
of Federal Operations, Equal Employment Opportunity Commission,
P.O. Box 19848, Washington, D.C. 20036. The agency's report must
contain supporting documentation, and the agency must send a copy of
all submissions to the complainant. If the agency does not comply with
the Commission's order, the complainant may petition the Commission for
enforcement of the order. 29 C.F.R. �1614.503(a). The complainant
also has the right to file a civil action to enforce compliance with
the Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
February 29, 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.