07a00021
10-31-2000
Patricia M. Boord, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigations) Agency.
Patricia M. Boord v. Department of Justice
07A00021
October 31, 2000
.
Patricia M. Boord,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Federal Bureau of Investigations)
Agency.
Appeal No. 07A00021
Agency No. F-98-5242
Hearing No. 100-99-7085P
DECISION
INTRODUCTION
Following its March 1, 2000 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<1> On appeal,
the agency requests that the Commission affirm its final order that
rejected an AJ's decision to certify a class. For the following reasons,
the Commission REVERSES the agency's final order.
ISSUE PRESENTED
Whether the agency's final order rejecting the decision of the EEOC AJ
to certify the class was correct.<2>
BACKGROUND
Complainant, a GS-14 Intelligence Operations Specialist, National
Security Division, employed by the Department of Justice, Federal Bureau
of Investigation, filed a formal class EEO complaint with the agency
on September 25, 1998, alleging that the agency discriminated against
her, and other professional female support staff members because of sex
(female) by requiring three years of investigative experience for certain
GS-14 and GS-15 level positions in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
She stated that the agency's investigative experience requirement was
not historically imposed on the subject positions. Further, she alleged
that such investigative experience is not job-related, and is imposed
by the agency to restrict promotions to a predominantly male pool of FBI
Special Agents. She also alleged the requirements adversely impacts the
promotional opportunities of otherwise qualified professional support
staff, predominantly comprised of females.
On October 26, 1998, the agency forwarded the class complaint to the Equal
Employment Opportunity Commission for assignment of an Administrative
Judge (AJ). On November 10, 1998, the EEOC's Complaints Adjudication
Division accepted the class complaint and notified the parties of the
need to conduct discovery. After receiving briefs from both parties,
the AJ issued a decision on February 1, 2000, certifying the class.
In his decision, the AJ examined the requirements for class certification;
adequacy of representation, commonality, typicality and numerosity.
The agency did not dispute that the class is adequately represented.
As for commonality and typicality, the AJ disagreed with the agency's
argument that the class lacked commonality and typicality because
individuals from varying divisions and offices made autonomous decisions
regarding the selection criteria for positions. Rather, the AJ found
the class agent met these prerequisites by presenting sufficient evidence
that the agency implemented a common practice or policy when it decided
to require prior investigative experience for its professional support
positions. Finally, the AJ determined complainant established that
the class met the numerosity requirements. Specifically, the AJ found
evidence that the proposed class of female professional support staff at
agency Headquarters, and affiliated offices in the Washington DC area,
who were deterred from applying to as many as 58 positions between 1996
and 1998 numbered at least 1,000.<3> The AJ disagreed with the agency's
contention that the class agent was required to specifically identify
class members at this stage in the certification process. Rather,
in light of the discrete nature of the class agent's claims, coupled
with the fact that the class agent would have little way of knowing at
this stage the identity of employees who were deterred from applying to
positions, the AJ found the class agent established her burden.
The AJ then ordered the agency to take final action on the decision
by issuing a final order. On March 1, 2000, the agency issued a final
order deciding not to implement the AJ's decision. On March 14, 2000,
the agency filed the instant appeal.
CONTENTIONS ON APPEAL
By letter dated April 3, 2000 the agency responded to our acknowledgment
order. Therein, the agency stated, �[t]he FBI's position in this
matter is fully detailed in its 38-page brief that it filed with the
administrative judge on August 23, 1999, its letter to the administrative
judge filed on September 20, 1999, and its 24-page brief that it filed
with the Department of Justice's Complaint Adjudication Officer (CAO)
on February 23, 2000.� Thereafter, the agency submitted the complaint
file. No other brief or statement in support of its appeal was filed
by the agency.
On May 30, 2000, we received a request from class counsel for an extension
of time in which to file a brief in opposition to the agency's appeal.
Therein, the class counsel represented it was her understanding that
the agency was planning on filing a brief in support of its appeal.
Having not received anything by May 23, 2000, the class counsel realized
the agency was relying on the aforementioned documents as its argument
on appeal. As such, the class counsel requested an extension of time
to file a brief until June 30, 2000 as she needed additional time to
prepare for other scheduled trials. On May 31, 2000, the agency objected
to the extension, citing 29 C.F.R. � 1614.403(f).
In its brief submitted to the AJ which serves for its argument on appeal,
the agency maintains that the AJ erred when he determined the complaint
satisfied the requirements for class certification. Specifically, the
agency determined the AJ erred when he found the class agent established
that the class had requisite commonality, typicality and numerosity.
The agency argues on appeal that complainant failed to establish
numerosity because she failed to specifically identify any members of the
class other than herself. The agency argued that although complainant
need not name all members of the class, she must make a showing that
some identifiable members of the female professional support staff
were rejected or discouraged from applying to positions because of the
investigative experience requirement.
Additionally, the agency argued that the class should not be certified
because the class lacked a common core of facts, and complainant's
claim was not typical to the claims of other members of the class.
Specifically, the agency argued that the class agent failed to show
there was a link between her non-selection for the position in the
Instructional Technology Services Unit, and the positions purportedly
sought by other class members. To that end, the agency argued that the
Vacancy Announcements for each position were issued by various divisions,
the positions vary in skills and duties, and lack common issues of fact,
�other than the general investigative experience requirement.� See
Agency Final Action, p. 10.
ANALYSIS AND FINDINGS
As an initial note, we agree with the agency's argument that class
counsel failed to timely submit a brief in opposition to the agency's
appeal. 29 C.F.R. � 1614.403(f) provides that any statement of brief in
opposition to an appeal must be submitted to the Commission and served
on the opposing party within 30 days of the statement or brief supporting
the appeal, or, if no statement of brief supporting the appeal is filed,
withing 60 days of receipt of the appeal.
In this case, class counsel argues that she was not aware that the April
3, 2000 correspondence served as the agency's brief by referencing an
earlier filed brief. Assuming we are persuaded by this argument, the
Regulations provide that in the event that no supporting brief is filed
on appeal, an opposing brief may be filed within 60 days of receipt of
the appeal. Thus, if the class counsel was not aware that the agency
filed a brief in support of its appeal, class counsel had until May 12th
(sixty days from receipt of the appeal) in which to submit a brief.
Class counsel failed to submit a brief, or request an extension, within
60 days from receipt of the appeal. Instead, she requested an extension
on May 26, 2000. As such, class counsel's brief on appeal was untimely
filed, and thus, will not be considered herein.
EEOC Regulation 29 C.F.R. � 1614.204(a)(2) defines a class complaint.
A class complaint is a written complaint of discrimination filed on
behalf of a class by the agent of the class alleging that: (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 are typical of the claims of the class;
and (iv) the agent of the class, or if represented, the representative
will fairly and adequately represent 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).
Commonality and Typicality
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.
In the instant complaint, the class agent alleges that the agency
implemented the three year investigative requirement for certain GS-14
and GS-15 positions to discriminate against her and the predominantly
female professional support staff. She also alleges that this practice
serves to adversely impact the professional support staff. According to
complainant, because of this requirement, these positions were awarded
to Special Agents, who were predominantly males. The agency argues
that since selection criteria are not uniformly determined, and all the
positions involve varying skills and duties, the class complaint lacks
commonality and typicality.
The AJ found, however, that sufficient facts supported the existence
of a common practice or policy that allegedly discriminated against
female professional support employees by requiring prior investigative
experience for certain GS-14 and GS-15 professional support positions.
In support of this, the AJ found evidence in the record that the then FBI
Director required justification for the conversion of professional support
positions to positions that required prior investigative experience be
made to the agency's Resource, Management and Allocation Board (RMAB).
Furthermore, a memoranda from the RMAB administrator to the class
agent states that after considering the submitted justification for the
conversion of the position to which complainant sought, the RMAB approved
the conversion of the position to require prior investigative experience.
This evidence supports the class agent's inference that a central policy
or practice determined that prior investigative experience was required
in certain positions. As such, we find, as did the AJ, that there was
sufficient evidence to satisfy the class agent's burden of establishing
commonality and typicality.
Numerosity
Although the Commission's requirements for an administrative class
complaint are patterned on the Rule 23 requirements, Commission decisions
in administrative class certification cases should be guided by the fact
that an administrative complainant has not had access to precertification
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. However,
in the administrative process, as in the court process, 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. Hines et al. v. Department of
the Air Force, EEOC Request No. 05940917 (January 29, 1996).
In its final order and brief on appeal, the agency argued that the class
agent failed to satisfy the numerosity requirement because she failed
to specifically name any other member of the class other than herself.
We agree with the AJ's determination that complainant established
sufficient evidence that she satisfied the numerosity requirement for
class certification. Despite the agency's argument to the contrary, we
remind the agency that when determining whether numerosity has been met,
the class should not be limited to those identified in the complaint.
See Ann M. Garcia et. al. v. Department of Justice, EEOC Request
No. 05960870 (October 1, 1998). The AJ in this case found that at
least 1,000 females were potentially deterred from applying or denied
consideration for approximately 58 professional support positions withing
the Headquarters Region. This number, which represents those individuals
who could have been affected by the agency's allegedly discriminatory
practice, is sufficient to establish the requisite numerosity.
Adequacy of Representation
The agency does not dispute that the class is adequately represented.
We agree with the AJ's finding that the class agent presented sufficient
evidence that satisfies the requirement of adequate class representation.
CONCLUSION
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
It is the decision of the Commission to certify the class comprised of all
otherwise qualified female professional support staff in the agency's
headquarters and affiliated offices in the Washington, D.C. region
(including Quantico and Newington in Virginia and Clarksburg in West
Virginia), at grades GS-12 and above, who applied, or were deterred from
applying, for managerial and administrative positions at the GS-14 and
GS-15 levels requiring prior investigative experience. The agency is
ORDERED to process the remanded class complaint in accordance with 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 Washington Field Office, Washington, D.C., for further processing of
the class complaint pursuant to 29 C.F.R. � 1614.204 et seq. The agency
shall provide a copy
of the notice of certification and request for appointment of an
administrative judge to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 31, 2000
__________________
Date
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.
2The AJ also had before him the issue that the class agent failed to
timely contact an EEO Counselor. Therein, the AJ determined he class
agent made timely EEO contact. In its final order, the agency agreed
with the AJ's determination in that regard. Therefore, the issue of
whether the class agent made timely EEO contact is no longer in dispute,
and will therefore not be discussed herein.
3In 1999, there were 1,401 female professional support staff in the
Headquarters region at the GS-12 or above level who would most likely
seek the elimination of the investigative experience requirement.
AJ Decision at 14.