01981476
01-12-2000
Portia Starks and Sharon Foster, Complainants, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Portia Starks and Sharon Foster v. Department of the Navy
01981476
January 12, 2000
Portia Starks and Sharon Foster, )
Complainants, )
) Appeal No. 01981476
v. ) Agency No. 90-62661-003C
) Hearing No. 160-96-8612X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainants timely initiated an appeal from the agency's final
decision (FAD) dismissing their class complaint of unlawful employment
discrimination on the basis of race (Black) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainants allege that the agency's hiring practices adversely impacted
Black applicants. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission vacates the FAD
and remands the complaint.
In Starks and Foster v. Department of the Navy, EEOC Appeal No. 01951112
(June 26, 1996), the Commission remanded this complaint to the agency
for transmission to an EEOC Administrative Judge (AJ) to determine
whether the class complaint satisfied the appropriate, regulatory
requirements of timeliness, commonality, typicality, numerosity and
adequacy of representation for class certification of the complaint.<2>
The complaint challenges the agency's hiring practices, specifically
the "area of consideration" practice; the eight initiatives' program;
and the channeling of Black applicants into lower level positions.
On September 30, 1997, the AJ issued a Recommended Decision (RD)
finding that the complaint, having met all the requirements for class
certification, should be accepted for processing. Initially, the AJ
determined that complainants, who, since their initial application,
had constant interaction regarding issues of discrimination with the
facility's EEO office, satisfied the regulatory requirement for timely
EEO counselor contact. The AJ found that the allegedly adverse impact
of the facility's hiring practices was common to the proposed class and
typical since the practice had a similar effect on all Black applicants,
whether or not they were already employed by the agency and regardless
of the position for which they were applying. The AJ determined that
the numerosity requirement was satisfied since 152 out of 160 jobs
advertised in 1989 had narrow, limited areas of consideration, and the
AJ also concluded that both the complainants and their representative
would be able to fairly and adequately protect the interests of the class.
On October 30, 1997, the agency issued a final decision rejecting the
AJ's RD. The FAD found that the complainants failed to timely contact
an EEO counselor and that complainants' claims were not typical of the
class members they purported to represent nor did the claims present
common questions of fact. Specifically, the FAD stated that since
both complainants were reinstatement eligible, they were different from
class members with no prior federal experience; since they were in fact
selected for employment, their claims were not typical of those class
members who were not selected; and since the potential class consists of
applicants for a wide variety of positions at different pay scales and
at different geographical locations under separate commands, there was
neither commonality or typicality. Consequently, the FAD determined
that complainants failed to show that the class was too numerous to
render joinder impractical. The FAD also found that the RD did not set
forth an adequate definition of the class. In support of their appeal,
complainants rely on the AJ's analysis. The agency did not submit
a response.
The United States Supreme Court has held that an allegation of
across-the-board discrimination is not, by itself, sufficient to
justify its acceptance as a class claim. See General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 157 (1982).<3> Rather, an individual
litigant seeking to maintain 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"
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.<4>
Contrary to the FAD, we agree with the AJ that complainants have
presented enough evidence to warrant provisional certification of the
class and further development of the record. See Flourney v. National
Aeronautics and Space Administration, EEOC Appeal No. 01966586 (March
3, 1998). In our view, complainants have presented enough facts to
raise an "across-the-board" claim of class-wide racial discrimination
in the agency's hiring practices at the Consolidated Civilian Personnel
Office at the Naval Education and Training Center (CCPO-NETC) in Newport,
Rhode Island and its tenant activities and have satisfied the criteria
set forth at 29 C.F.R. � 1614.204(a).
See Hines, Jr. v. Department of the Air Force, EEOC Appeal No. 01931776
(July 7, 1994), request to reconsider denied, EEOC Request No. 05940917
(January 29, 1996).
With respect to the requirements of commonality and typicality,
complainants' claim and claims of the members of the proposed class must
be sufficient to raise common questions of fact and law. See Falcon, 457
U.S. at 156. While complainants need not prove the merits of the class
claim, they must identify specific facts that are common to the class.
In this regard, complainants' individual claims must show some nexus
with the claims of the putative class. Here, complainants' individual
claims of being denied access to a variety of job opportunities and
being channeled into lower level positions reflect the alleged practice
of excluding minority applicants from consideration for employment
opportunities.
With respect to the numerosity requirement, we agree with the AJ that
based on the number of jobs advertised in 1989 with limited "areas
of consideration," complainants have met the numerosity requirement
by showing that the class is potentially sufficiently numerous that
a consolidated complaint by the members of the class is impractical.
Moreover, CCPO-NETC and its tenant activities are geographically dispersed
such that joinder of the putative members in a consolidated complaint
would be impractical.
The agency does not dispute the adequacy of complainants' representative,
an accomplished class action attorney with twenty six years of experience,
and we agree with the AJ that complainants are adequate agents of the
class because there is no evidence of a conflict between their interests
and the interests of potential class members. Finally, we reject the
FAD's finding that complainant's EEO counselor contact was untimely.
The complainants' numerous contacts with and complaints to a high level
EEO officer concerning the hiring and promotion process commencing in
July 1989 were more than sufficient to establish timely EEO contact.
The Commission finds that the agency improperly rejected the AJ's decision
to recommend certifying the class and improperly dismissed the complaint.
Accordingly, we vacate the FAD and remand this matter for further
processing in accordance with the ORDER below. Our regulations not only
provide for 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);
Dunbar v. Social Security Administration, EEOC Appeal No. 01975435
(July 8, 1998), request to reconsider denied, EEOC Request No. 05981075
(January 22, 1999). On remand, the AJ must adequately define the class
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)).
Specifically, the AJ must determine the temporal and geographical
boundaries of the class of Black applicants adversely affected by the
agency's allegedly discriminatory hiring practices.
ORDER
The Commission remands this class complaint to the Hearings Unit of the
Commission's New York District Office for assignment. The Commission
orders the following:
(1) Once the assigned AJ determines the temporal and geographical
boundaries of the class of Black applicants adversely affected by the
agency's allegedly discriminatory hiring practices, the AJ will notify
the agency of the complaint's acceptance.
(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 (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"). filed within the time limits as stated
in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
January 12, 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 after it was mailed. I certify
that this 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.
2 The discrimination alleged in this complaint occurred in 1989.
At that time, the appropriate class complaint regulations were found in
29 C.F.R. � 1613.601 et seq., now codified at 29 C.F.R. � 1614.204(a).
3 We are mindful that Falcon does not wholly foreclose the possibility
that an "across-the-board" class action might be properly certified in
appropriate circumstances. In fact, Falcon noted that the commonality
and typicality requirements might be satisfied if there was "[s]ignificant
proof that an employer operated under a general policy of discrimination,"
and "the discrimination manifested itself in hiring and promotion in
the same general fashion, such as through entirely subjective decision
making processes." 457 U.S. at 159 n.15.
4 The Commission acknowledges that class agents in the EEO process
are without the benefit of the pre-certification discovery available
to Rule 23 litigants. Moten v. Federal Energy Regulatory Commission,
EEOC Request No. 05910504 (December 30, 1991); Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993).