Nancy McGuire, et al., Complainant ,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01985492 (E.E.O.C. Jul. 17, 2000)

01985492

07-17-2000

Nancy McGuire, et al., Complainant , v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Nancy McGuire v. Social Security Administration

01985492

July 17, 2000

Nancy McGuire, et al., )

Complainant , )

)

)

v. ) Appeal No. 01985492

) Hearing No. 130-96-8120X

) Agency No. 98-0446-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

____________________________________)

DECISION

On June 29, 1998, complainant, the class agent, filed an appeal to this

Commission from the agency's final order, dated May 27, 1998, concerning

her class complaint of unlawful employment discrimination in violation

of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1>

The record indicates that complainant, on behalf of herself and a group

of agency employees, filed a class complaint dated May 30, 1996, alleging

discrimination based on age (over 40) when she and approximately ninety

(90) Social Insurance Specialists/Claims Authorizer Technical Assistants

(CATAs) were denied their position upgrade from GS-105-11 to GS-105-12.

Complainant identified thirteen (13) named individuals, CATAs, who were

over 40 years of age.

Subsequently, the agency referred the class complaint to an EEOC

Administrative Judge (AJ), and on October 29, 1997, the AJ issued a

decision dismissing the class complaint because it did not meet the

prerequisites of a class complaint under the regulations. On May 27,

1998, the agency issued a final order accepting the AJ's decision.

Volume 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.204(a)(2)) provides that a �class

complaint� is a written complaint of discrimination filed on behalf of

a class by the agent of the class alleging that: (1) the class is so

numerous that a consolidated complaint of the members of the class is

impractical; (2) there are questions of fact common to the class; (3) the

claims of the agent of the class are typical of the claims of the class;

and (4) the agent of the class, or, if represented, the representative,

will fairly and adequately protect the interests of the class.

Numerosity

The numerosity prerequisite requires that the class be sufficiently

numerous that a consolidated complaint by the members of the class

is impractical. No set number of class members is required to meet

the numerosity prerequisite, and each case must be evaluated based on

the particular circumstances involved. While the exact number of class

members need not be shown prior to certification, the focus in determining

whether the class is sufficiently numerous for certification is the

number of persons affected by the agency's allegedly discriminatory

practices and who thus may assert claims. Moten v. Federal Energy

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

see generally, Lilly v. Harris - Teeter Supermarket, 720 F.2d 326, 333,

n.5 (4th Cir. 1983).

In the instant case, complainant, undisputed by the agency, indicated

that the class consisted of approximately 90 CATAs within the agency.

Specifically, complainant indicated that all of the class members were

over 40 years of age and they were allegedly denied their position

upgrade from GS-11 to GS-12. Furthermore, complainant provided the

names of 13 class members. Thus, the Commission finds that the class

is sufficiently numerous; thus, it satisfies the numerosity requirement.

Commonality and Typicality

The commonality and typicality require that the class agent possess

the same interest and suffer the same injury as the members of the

proposed class. General Telephone Company of the Southwest v. Falcon, 457

U.S. 147, 156 (1982); East Texas Motor Freight System, Inc. v. Rodgriguez,

431 U.S. 395, 403 (1979). In application, the commonality and typicality

prerequisites tend to merge, and are often indistinguishable. Falcon,

457 U.S. at 157, n. 13.

Commonality is established when a common thread of discrimination

confronts all members of a class. This requires a showing of some

uniformity among the class members and the fact that the claims of class

members involve common issues of fact. Commonality requires that there

be questions of fact common to the class. Mere conclusionary claims,

standing alone, do not show commonality. �Across-the-board� actions which

involve claims of discrimination in different practices such as hiring,

promotion, termination, training, and awards, will not be certified merely

because the class members share the same race, national origin, or sex.

Falcon, 457 U.S. at 150-152, n.4, 158-159, n.15. A class agent must

specifically identify facts common to the class. Factors to consider

in determining commonality are whether the practice at issue affects

the whole class or only a few employees, the degree of local autonomy

or centralized administration involved, and the uniformity of the

membership of the class, in terms of the likelihood that the members'

treatment will involve common questions of fact. See Charles, supra;

Harris, 74 F.R.D. at 39.

Typicality requires that the claims of the class agent be typical of the

claims of the class. 29 C.F.R. � 1614.204(a)(2)(iii); Charles, supra.

Although they need not be identical, the claims must be sufficiently

typical to encompass the general claims of the class members so that it

will be fair to bind the class members by what happens with the agent's

claims. Further, the Supreme Court has repeatedly held that a class

agent must be part of the class and �possess the same interest and suffer

the same injury� as the class members in order to establish commonality

and typicality. Falcon, 457 U.S. at 156; Rodgriguez, 431 U.S. at 403;

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216

(1974). The overriding typicality principle is that the interests of the

class members must be fairly encompassed within the class agent's claim.

Falcon, 457 U.S. at 159, n.15; see also Griffin, supra.

In the instant class complaint, complainant specifically alleged that all

members of the class were allegedly denied their CATA position upgrade

from GS-11 to GS-12. Complainant also indicated that she was allegedly

denied her CATA position upgrade from GS-11 to GS-12. Since the class

complaint specifically identifies the alleged claim which is common

to its members and complainant's claim involves the same matter, the

Commission finds that the class complaint satisfies the commonality and

typicality requirements.

Adequacy of Representation

Adequate representation requires that the class representative �fairly

and adequately protect the interest of the class.� 29 C.F.R. �

1614.204(a)(2)(iv). The determination of whether complainant may

�fairly and adequately protect the interest of the class� involves a

two-fold inquiry in that: (1) whether the class representatives have

common interests with members of the purported class; and (2) whether

the class representatives will vigorously prosecute the interests of the

purported class through qualified counsel. See Paxton v. Union National

Bank, 688 F.2d 561 (8th Cir. 1982).

Complainant indicated that her representative, a non-attorney, had over

10 years of experience as an EEO representative and served over 50 cases,

including class complaints. The agency did not provide any evidence or

argument that refutes complainant's assertions. After a review of the

record, the Commission finds that complainant's representative satisfied

the adequacy of representation requirement. Furthermore, complainant

indicated that when the class complaint proceedings become formal,

she would obtain an attorney to serve as the class representative upon

notification from the AJ.

Accordingly, the agency's final order is REVERSED and the class complaint

is REMANDED to the agency for further processing in accordance with this

decision and applicable regulations.

ORDER

The agency is ORDERED to process the remanded class complaint in

accordance with 64 Fed. Reg. 37,644, 37,658-9 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.204). The agency, within

thirty (30) calendar days of the date this decision becomes final, shall

acknowledge to all of the class members that it has received the remanded

class complaint. The agency, within thirty (30) calendar days of the date

this decision becomes final, is ORDERED to transmit the class complaint,

the complete case file, and any other relevant information related to

the class complaint to the previously assigned Administrative Judge in

EEOC, Birmingham District Office, for further processing of the class

complaint pursuant to 29 C.F.R. � 1614.204 et seq.

A copy of the agency's letter of acknowledgment to all class members and

a copy of the correspondence that transmits the class complaint to the

AJ must be submitted 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

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:

July 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.