Lawrence D. Durnford, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01971933 (E.E.O.C. Mar. 29, 2000)

01971933

03-29-2000

Lawrence D. Durnford, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Lawrence D. Durnford v. Department of Justice

01971933

March 29, 2000

Lawrence D. Durnford, )

Complainant, )

) Appeal No. 01971933

v. ) Agency No. B962206

) Hearing No. 100-96-7573X

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning his complaint of 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 pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the reasons that follow, the Commission VACATES the FAD and REMANDS

the complaint for further processing consistent with the ORDER below.

The record reveals that complainant, an unsuccessful 1994/1995 applicant

for the position of Immigration Judge (Position) with the agency's

Executive Office for Immigration Review (EOIR), filed a formal EEO

complaint with the agency on March 1, 1996. Complainant contends that

EOIR officials failed to select him in favor of less qualified minority,

Jewish, and female applicants, claiming discrimination on the bases of

race (Caucasian), national origin (English), religion (Mormon/Latter

Day Saints), and sex (male). Complainant further claims that he and

"hundreds" of non-minority, non-Jewish, male 1994/1995 applicants for

the Position were discriminated against in the same manner. Complainant

requested that these applicants be certified as a class in order to

pursue the instant claim as a class action complaint.

The agency referred this matter to an EEOC Administrative Judge (AJ)

for the purpose of issuing a recommended decision (RD) to the agency

regarding complainant's request for class certification. The AJ

recommended that the agency conditionally accept the complaint as a

class complaint defined as "non-Hispanic, White, non-Jewish, and male

applicants for employment who were not selected as Immigration Judges."

The agency issued a FAD rejecting the RD, and denied class certification.

Complainant now appeals this determination. Neither complainant nor

the agency have submitted statements regarding this appeal.

It is well established that a complainant seeking to pursue a class

action bears the burden of proof in establishing that the proposed class

meets the "prerequisites of numerosity, commonality, typicality, and

adequacy of representation" as specified in 29 C.F.R. � 1614.204(a).

This regulation, which is an adaptation of Rule 23(a) of the Federal

Rules of Civil Procedure, provides that the agency may reject a class

complaint if any one of these prerequisites is not met.

Contrary to the FAD, we agree with the AJ that the complainant has

presented enough evidence to conditionally satisfy these prerequisites

sufficient to warrant provisional certification of the class pending

further development of the record. See Flourney v. National Aeronautics

and Space Administration, EEOC Appeal No. 01966586 (March 3, 1998).

1. Numerosity

Pursuant to 29 C.F.R. � 1614.204(a) (2) (i) a class must be so numerous

that a consolidated complaints of the members of the class is impractical.

Although the Commission's requirements for an administrative class

complaint are patterned on the Rule 23 requirements, Commission

decisions in administrative class certification cases are guided

by the fact that the administrative complainant has not had access

to pre-certification discovery in the same manner and to the same

extent as a Rule 23 plaintiff. See Moten et al. v. Federal Energy

Regulatory Commission, EEOC Request No. 05910504 (December 30, 1991).

Moreover, the exact number of class members need not be shown prior to

certification. Id. The correct focus in determining whether a proposed

class is sufficiently numerous for certification purposes is on the

number of persons who possibly could have been affected by the agency's

allegedly discriminatory practices and who, thus, may assert claims. Id.

The AJ retains the authority to redefine a class, subdivide a class, or

recommend dismissal of a class if it becomes apparent that there is no

longer a basis to proceed with the class complaint as initially defined.

See 29 C.F.R. � 1614.204(d); Dumbar v. Social Security Administration,

EEOC Appeal No. 01975435 (July 8, 1998), request to reconsider denied,

EEOC Request No. 05981075 (January 22, 1999).

Responding to the AJ's request for information, complainant submitted

a July 27, 1995, letter from the Chief Immigration Judge notifying

him of his non-selection for the Position in which he states that the

agency received "hundreds of applications from qualified candidates."

He also submits an July 1995 agency newsletter which lists the names of

34 successful applicants for the Position, contending that the majority

of them are "obviously" female, Jewish, and "minority"(non-Caucasian)

persons. In evaluating this evidence, the AJ noted that the agency failed

to respond to his request for information so that the record was devoid

of any evidence or explanation contrary to that provided by complainant.

The AJ then concluded that complainant "is likely" to be able to carry

his burden of proof during post-certification discovery, noting that

complete information is not required at the certification stage because

class agents do not have the benefit of pre-certification discovery,

citing to Hines et al. v. Department of the Air Force, EEOC Request

No. 05940917 (January 29, 1996).

The FAD disagreed with this determination, concluding that a form

rejection letter is not reliable evidence of the actual number of

applicants, and that complainant provided no evidence to show how many

of these applicants had the requisite class characteristics. The FAD

also argued that deducing sex, religious, and non-Caucasian status

from names in a newsletter was nothing more than mere speculation.

The FAD concluded that complainant was only able to identify himself as

a member of the proposed class, so that complainant's request for class

certification must be denied.

We are unpersuaded by the agency's arguments, and find that the AJ's

analysis of this prerequisite is correct. Because the agency failed to

respond to the AJ's request for information, which could have corroborated

the arguments in the FAD regarding the actual number of 1995 applicants

for the Position, as well as the breakdown of the applicant pool into

sub-sets of class characteristics, the complainant was able to carry

his burden of proof with the evidence he submitted. Given the agency's

failure to submit any evidence in its favor, the AJ correctly determined

that complainant would likely be able to obtain the evidence of numerosity

he needed, which is maintained by the agency, during post-certification

discovery. In other words, if the agency had contrary evidence to offer,

it would have done so, and its failure to do so strongly suggests that the

evidence that it does have in its possession supports the complainant's

claim that the numerosity requirement is satisfied. We concur in this

determination, finding that the AJ correctly applied the pertinent laws

and regulations, as set forth above.

2. Commonality and Typicality

The requirements of commonality and typicality require that the class

agent's claim and the claims of the members of the proposed class raise

common questions of fact and law. 29 C.F.R. �1614.204(a)(2)(ii)(iii)

In practice, the commonality and typicality prerequisites tend to merge.

General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 157

n.13 (1982). At the certification stage, the complainant need only

identify specific facts that are common to the class, and not address

the merits of the class claims. However, the class agent must submit

more than mere bare allegations that these prerequisites are satisfied;

and, his individual claim must show some nexus with the claims of the

putative class. Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985);

Falcon, 457 U.S. at 157-58.

The AJ found that complainant satisfied this requirement by defining

the putative class as all unsuccessful 1994 and 1995 applicants for

the Position who were allegedly discriminated against on the bases

of race/color(White), sex (male), religion (non-Jewish), and national

origin (non-Hispanic), and referencing the Chief Immigration Judge's

newsletter statement that he was focused on creating a diversified bench.

The AJ found that this evidence was sufficient for complainant to carry

his burden of proof because the agency failed to provide any evidence

to the contrary. However, the AJ also noted that complainant failed

to submit evidence that the discrimination was based on religion, or

that the diversity policy included religion, but that complainant could

clarify this deficiency during post-certification discovery.

The FAD conceded that complainant had established commonality, but perhaps

not typicality because complainant's application for the Position had

also been rejected in 1988, prior to the announcement of diversity goals,

apparently suggesting that complainant had flawed qualifications which

were responsible for his rejection, and discrimination played no role.

However, the FAD then declared that the record was inadequate to establish

this, noting that commonality and typicality are "arguably" met, and that

typicality can further be developed during post-certification discovery

if the case reaches that stage.

We find that the AJ's determination regarding these two requirements is

consistent with the laws and regulations set forth above, and note that

the FAD actually does concede that the agency's only argument is based

on pure speculation, and that these requirements have been satisfied.

3. Adequacy of Representation

According to 29 C.F.R.� 1614.204(a)(2)(iv), the class must have a

representative who can "fairly and adequately protect the interests of

the class." In the RD, the AJ noted that complainant was an attorney and

that he testified that he had been conferring with an attorney who had

expertise in litigating class action complaints who would "very likely"

represent the class if it were certified. Although complainant did not

submit the curriculum vitae of the proposed representative, or any other

documentary evidence regarding his qualifications or commitment to accept

the case, the AJ found that complainant demonstrated the intent to obtain

adequate representation after certification, which was adequate under

Hines, supra. The AJ concluded that complainant conditionally met his

burden of showing adequate representation, provided that he submits more

detailed information to the agency to demonstrate this once the class

if certified.

The FAD rejected this finding, concluding that complainant submitted no

evidence, merely making statements regarding the adequacy of counsel.

The FAD further stated that the holding in Hines (that prior to

certification the expressed intention to obtain adequate representation

is sufficient for conditional certification) should not be applied absent

documentary evidence, and that at a minimum the Commission should remand

for development of this issue.

We are again unpersuaded by the agency's arguments, and find its challenge

of the AJ's application of the Hines decision to be without merit,

especially because complainant is an attorney himself, with an enhanced

ability to evaluate the adequacy of the representation, and he has been

actively pursuing expert legal representation for the proposed class.

Based on the legal standards set forth by our regulations and in Hines,

supra, we find that the AJ made the correct decision regarding this

fourth prerequisite, and we discern no reason to disturb it.

By way of conclusion, the FAD repeats its finding that the requirements

of numerosity and representation have not been satisfied, but suggests

that the Commission should remand the case for further development of

both issues. Absent this development, the FAD argues that certification

must be denied. We disagree. As noted by the AJ, complainant carried

his burden of proof regarding each of the four requirements, but that the

certification was "conditional" on post-certification discovery verifying

numerosity and documentation verifying adequacy of counsel. In order

words, the AJ has determined that the class should be certified, but that

if complainant after discovery cannot provide evidence of numerosity

(and adequate representation upon formal notice of certification), the

AJ will then use his authority to decertify the class. See Dunbar, supra.

In summary, the Commission finds that the AJ's decision summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Therefore, after a careful review of the record, including

arguments and evidence not specifically discussed in this decision,

the Commission VACATES the FAD and REMANDS the complaint in accordance

with this decision and the ORDER below.

ORDER

The Commission orders the following:

1. The Commission remands this class complaint to the Hearings Unit of

the Commission's Washington D.C. Field Office for assignment.

2. The assigned AJ will notify the agency of the complaint's acceptance

as a class action, and order necessary post-certification discovery on

the issues of numerosity and adequacy of representation. As previously

noted, our regulations not only provide for this discovery but give the

AJ discretion 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. 29 C.F.R. � 1614.204(d). Therefore, on remand, the

AJ must fully and carefully define the class, especially in regard

to religious status, to enable the agency to comply with 64 Fed. Reg

37,644, 37,658 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �1614.204(e)).

(2) Upon receipt of the AJ's notice, the agency will notify all class

members of the acceptance of the class complaint in accordance with

the requirements of � 1614.204(e) and send a copy of the notice to the

Compliance Officer, as referenced 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).

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:

March 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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ _________________________

Date Equal Employment Assistant

1 On 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.