0720090019
08-25-2010
Ronald Jantz, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Ronald Jantz,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720090019
Hearing No. 531-2006-00276X
Agency No. HQ062518
DECISION
Following its December 8, 2008, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) decision to certify the above-captioned matter as a class complaint. The Agency asks that the Commission affirm its final action rejecting the AJ decision. For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
Whether the EEOC AJ properly determined that the complaint at issue in this case met the criteria set forth in the Commission's regulations at 29 C.F.R. �1614.204(a)(2) for class certification.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-343-12, at the Agency's Office of the Deputy Commissioner, Budget, Finance and Management facility in Baltimore, Maryland. The record indicates that Complainant is deaf. On November 7, 2005, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (deaf) when:
1. On July 21, 2005, he was not selected for the position of Management Analyst, GS-343-13;
2. On August 3, 2005, he was not selected for the position of Lead Management Analyst, GS-343-13; and
3. On August 22, 2005, he was not selected for the position of Management/Program Analyst, GS-343-12.
The Agency began its investigation into the matter. On June 21, 2006, Complainant informed the Agency through the investigator that he was interested in pursuing the case as a class action. As a result, individual processing of the complaint ceased, and the case was forwarded to an EEOC AJ for processing as a class claim with Complainant acting as the Class Agent. See 29 C.F.R. �1614.204.
On October 23, 2006, Complainant filed a Motion for Provisional Class Certification. The Agency filed its opposition to the Motion on November 22, 2006. On December 13, 2006, the AJ issued an Acknowledgment and Order regarding the schedule and plan for discovery on the class claims. During this time, the Class Agent amended his complaint to include two additional positions which he was denied.
During discovery, the Class Agent and the Agency provided affidavits, expert reports and expert depositions in support of their cases. On June 27, 2008, the Class Agent filed his Motion for Class Certification. On July 17, 2008, the Agency filed its Motion in Opposition.
On October 8, 2008, the AJ issued his decision.1 As background, the AJ noted that the Class Agent is deaf in both ears. In addition, the AJ determined that the Class Agent was rated and made the best qualified list for each vacancy.
The Class Agent proposed two alternative class definitions: 1) all current and former employees with targeted disabilities at the Agency at the GS-5 level or above who, on or after August 22, 2005, have been denied promotion opportunities, or 2) all current and former employees with targeted disabilities at the Agency who, on or after August 22, 2005, have applied for promotions, appeared on a best qualified list and been denied promotion opportunities.2 The Class Agent alleged that the mechanism for the discrimination in this case is the unfettered discretion and subjective decision-making that the Agency gives selecting officials when they make their selection decisions. He indicated that the evidence would show that the Agency's policies allowed decision-makers to exercise unchecked subjective discretion in selecting individuals for promotion. He further argued that statistical evidence would establish that this wide discretion results in clear statistically significant disparities in promotional opportunities for those with targeted disabilities who apply for promotions and make the best qualified list. The Class Agent noted that statistics show that individuals with targeted disabilities on the best qualified list are promoted at an overall selection rate of 7.7%, while those without targeted disabilities who make the best qualified list are promoted at a selection rate of 11.7%.
The AJ determined that the second proposed class definition is the only viable class. Therefore, the AJ defined the class as all current and former employees with targeted disabilities at the Agency who, on or after August 22, 2005, have applied for promotions, appeared on a best qualified list and been denied promotion opportunities. The AJ noted that those individuals with targeted disabilities who made the best qualified lists were clearly "qualified" individuals with a disability within the meaning of the Rehabilitation Act, and that the Commission and courts have recognized class complaints raising claims of disability discrimination.
The AJ then turned to the prerequisites for class certification-commonality, typicality, numerosity and adequacy of representation. The AJ first analyzed commonality. The AJ indicated that the Class Agent presented evidence that the discriminatory practice challenged was the Agency's centralized policy of affording selecting officials unfettered discretion in making promotion selection decisions. The Agency argued that this discretion is limited by the requirement that they must adhere to merit promotion procedures. However, the Class Agent asserted that the centralized policy afforded selecting officials allowed a pattern of unlawful bias against individuals with targeted disabilities in promotion selection decisions.
The Agency produced best qualified lists for 1, 915 different vacancy announcements from 2003 to 2007, involving 45,952 applicants. The Class Agent retained the services of a Statistician who matched the names of individuals with targeted disabilities against the best qualified lists and selection lists to do a statistical analysis. For every year from 2004, the Statistician found that there was a statistical disparity in selection rates between 3.46 and 4.64 standard deviation. The Statistician concluded that there was "a consistent pattern of statistically significant shortfalls in selection of applicants with TDEs [targeted disabilities] over the time period covered. During this time period, only 195 TDEs [individuals with targeted disabilities] who made the [best qualified list] were selected for promotions, an overall rate of 7.7%. This compared to 4,810 non-TDEs [individuals with targeted disabilities]selected for promotions, an overall rate of 11.1%. The probably of these results occurring by chance, i.e. that disability did not influence the selection process, is far less than 0.05, it is less than one in 10 trillion (P< .0000000000001)."
The Agency argued that the Statistician's analysis was fatally flawed. The Agency asserted that the individuals with targeted disabilities should not have been treated as one group because their disabilities are different. However, the AJ found that the Agency's arguments were misplaced. The AJ noted that for a class complaint, it makes sense to treat individuals with targeted disabilities as a group, noting further that they are a group for reporting purposes under EEOC's Management Directive 715. The Agency asserted that there was no test to figure out whether or not the individuals with targeted disabilities are actually disabled under the Rehabilitation Act because they self-identify. The AJ noted that, at this stage, it was not necessary to establish that the members of the class are actually disabled under the Rehabilitation Act and that this information could be gathered later in the class processing with further discovery. The AJ determined that the Class Agent had shown enough at this stage for class certification based on self identification. Finally, the AJ noted that the Agency challenged the Statistician's assumption that all who made the best qualified list were equally qualified. The Agency provided its own experts in order to raise questions of the Statistician's evidence. The AJ was not persuaded by the Agency's evidence.
In addition to the statistical evidence, the Class Agent offered affidavits asserting alleged discriminatory treatment in promotions from more than 40 individuals with targeted disabilities. About 35 of these individuals applied for positions during the relevant time period, made the best qualified list, but were not selected for the positions for which they applied. Thus, the AJ noted that there were at least 35 potential class members. The Class Agent provided analysis from a Social Scientist, who reported that the Agency "has a common organizational culture affecting the career training and advancement opportunities available to, and promotion of [individuals with targeted disabilities]. In addition, there are features of the [Agency's] barriers to the career advancement of [individuals with targeted disabilities]. Finally, [the Agency's] policies and practices are not effective in the areas of identifying and eliminating potential barriers facing [individuals with targeted disabilities ]." The AJ noted that a similar report was provided and relied upon as scientifically reliable in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010). The Social Scientist also explained that promotions decisions are susceptible to stereotyping and bias against people with disabilities. The AJ found that the affidavits from proffered class members provided anecdotal evidence to reinforce the report provided by the Social Scientist. The Agency attacked the Social Scientist's report asserting contradictions within the report and use of only selective evidence in order to support his predetermined thesis. The AJ noted that at this stage of certification, it is not necessary to reject or accept the report.
Based on the totality of the circumstances, the AJ determined that the Class Agent presented evidence to establish commonality. The AJ found that the Class Agent has alleged a common question concerning the Agency's centralized practice affording selecting officials unfettered discretion, statistically significant evidence that individuals with targeted disabilities are selected for promotion at lower rates than those without targeted disabilities, anecdotal evidence of discrimination, and a social science report on the Agency's organizational culture which permits discrimination against individuals with targeted disabilities.
The AJ then turned to the issue of typicality. The AJ determined that the Class Agent's claim of discrimination is typical of the class. The Class Agent indicated that he has been employed with the Agency for 20 years and never promoted. The Class Agent made the best qualified list some 30-40 times for a variety of positions, but alleged that he was not selected due to his status as an individual with a targeted disability. The Agency asserted that the Class Agent's poor performance during interviews and undistinguished job performance were the reasons for his failure to be selected. The AJ noted that the Agency's arguments go to the merits of the Class Agent's case and are not proper in consideration in the certification stage of the class complaint. The AJ also noted that the Class Agent offered four other class members as alternate class agents and asserted that their claims were also typical of the class. The AJ determined that all the alternative class agents had claims that were typical of the class. Accordingly, the AJ concluded that the Class Agent established that his and other proffered class agents' claims were typical of the class.
The AJ then turned to the third prerequisite of numerosity. As noted in the AJ's decision, the Class Agent provided testimony from 35 individuals with targeted disabilities who have applied for competitive promotions, made the best qualified list, and were not selected for positions. Based on the evidence provided, the AJ concluded that the Class Agent met the prerequisite of numerosity.
Finally, the AJ determined that the Class Agent met the prerequisite of adequacy of representation. The AJ noted that the Class Agent was represented by a consortium of law firms with extensive experience in class action litigation including claims of employment and disability discrimination. Based on the affidavits from the Class Agent's attorneys providing their extensive experience and commitment of resources to the claims of the class, the AJ concluded that the Class Agent met the final prerequisite. Accordingly, the AJ granted class certification.
The Agency subsequently issued a final order rejecting the AJ's granting certification of the class.
CONTENTIONS ON APPEAL
The Agency filed the instant appeal on December 8, 2008. The Agency asserted that the AJ's certification decision should be reversed. The Agency noted that the AJ failed to consider the Agency's expert statistician as a sanction against the Agency. As such, the Agency requests that the Commission conduct a de novo review of the record and reject the AJ's decision to certify the class at hand. The Agency also asserted that class complaints raised under the Rehabilitation Act should only be certified if the challenged practice is "facially discriminatory" against individuals with a disability. As such, the Agency argued that the Class Agent failed to establish commonality. Further, the Agency asserted that the Class Agent's claim is not typical of the claims of the members of the class. Based on the lack of commonality and typicality, the Agency contended that the Commission should reverse the AJ's decision to certify the class complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.204(a)(2) states that 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.
Numerosity
The numerosity prerequisite states that the potential class must be sufficiently numerous so that a consolidated complaint by the members of the class, or individual, separate complaints from members of the class is impractical. See 29 C.F.R. � 1614.204(a)(2)(i). The focus in determining whether the class is sufficiently numerous for certification is the number of persons affected by the Agency's alleged discriminatory practice(s). See White, et al. v. Dept of the Air Force, EEOC Appeal No. 01A42449 (September 1, 2005). The Commission has held that the relevant factors to determine whether the numerosity requirement has been met are the size of the class, the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action at issue, and the size of each member's claim. Carter, et al v. U.S. Postal Serv., EEOC Appeal No. 01A24926 (November 14, 2003). The United States Supreme Court has held that the numerosity requirement of Federal Rule of Civil Procedure 23 does not impose a numerical minimum or cut-off point for the size of the class but, instead, requires an examination of the facts of each case. Harris v. Pan American World Airways, 74 F.R.D. 24 (N.D. Cal. 1977).
Upon review of the record, we find that the AJ properly determined that the potential class met this prerequisite. The record indicated at least 35 employees who have self-identified as individuals with targeted disabilities who have applied for promotions, made the best qualified list, and failed to be selected for the positions. Therefore, we agree that the Class Agent has shown that the class is sufficiently numerous for certification.
Commonality and Typicality
The purpose of the commonality and typicality requirements is to ensure that a class agent possesses the same interests and has experienced the same injury as the members of the proposed class. See General Telephone Company of Southwest v. Falcon, 457 U.S. 147 (1982). While these two criteria tend to merge and are often indistinguishable, they are separate requirements. Id. Commonality requires that there be questions of fact common to the class; that is, that the same agency action or policy affected all members of the class. Typicality, on the other hand, requires that the bases of the class agent be typical of the claimed bases of the class. The underlying rationale of the typicality and commonality requirement is that the interests of the class members be fairly encompassed within the class agent's claim. Id.
In this case, the Class Agent has asserted that the discrimination practice at issue is the Agency's centralized policy of affording selecting officials unfettered discretion in making promotion selection decisions. Upon review of the record, we find that the Class Agent has proffered sufficient evidence to support his contention that significant factual and legal questions are common to the members of the class. Specifically, the Class Agent has established commonality by providing: 1) significant evidence of the alleged Agency-wide policy containing allegations of excessive subjectivity in personnel decisions, and the maintenance of a strong Agency culture which included disability stereotyping; 2) statistical evidence of disparities in selection based on disability; and 3) anecdotal evidence of alleged disability-based discrimination.
In support of commonality, the Class Agent provided evidence from a Social Scientist who provided facts to support a claim that the culture at the Agency included disability-based stereotyping. The Social Scientist relied on affidavits, organizational charts, and other documents looking at the history of the Agency. Further, the Class Agent provided expert evidence from a Statistician who concluded that there was "a consistent pattern of statistically significant shortfalls in selection of applicants with [targeted disabilities] over the time period covered." The Agency challenged evidence provided by these experts and provided competing experts of their own. However, the Agency's challenge is misplaced at this stage of processing of the class complaint. At the certification stage, the main issue is for the factfinder to examine the proffered evidence to address whether or not there are common questions of fact or law. At certification, the focus is not on which parties' evidence supports the ultimate findings as to discrimination. Id. at 602-3. As such, the Commission is not persuaded by the Agency's challenges to the evidence provided by the Class Agent's experts.3 Considering the proffered evidence as a whole, we find that the Class Agent has raised an inference that the Agency engaged in discriminatory practices related to promotions that affected the members of the class in a common manner.
The Agency also asserted that class complaints raised pursuant to the Rehabilitation Act should only be certified if the challenged practice is "facially discriminatory" against individuals with a disability. The Commission has previously stated that it has no policy finding the Rehabilitation Act as "ill-suited" for class treatment. Travis v. U.S. Postal Serv., EEOC Appeal No. 01992222 (October 10, 2002). We have held, however, that the putative class agent must establish an evidentiary basis from which one could reasonably infer the operation of an overrriding policy or practice of discrimination. See Cyncar v. U.S. Postal Serv., EEOC Appeal No. 0720030111 (February 1, 2007); see also Garcia v. Dep't of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003). Here, we are satisfied that the class has met the commonality by establishing an inference of the operation of an overriding policy of discrimination in violation of the Rehabilitation Act. As found by the AJ and noted above, the Class Agent provided evidence to establish significant evidence of the Agency-wide policy, statistical evidence of disparity, and anecdotal evidence in support of the claim of disability-based discrimination. Accordingly, we conclude that the AJ correctly held that the Class Agent established commonality.
We further find that the record clearly indicated that the Class Agent's individual claims of discriminatory non-promotion, as well as those of the other proffered alternative class agents, are typical of the class. Therefore, the Commission also agrees with the AJ finding that the Class Agent and proffered alternative Class Agents met the prerequisite of typicality. 4
Adequacy of Representation
The final requirement is that the Class Agent, or his or her representative, adequately represents the class. To satisfy this criterion, the agent or representative must demonstrate that he or she has sufficient legal training and experience to pursue the claim as a class action, and will fairly and adequately protect the interests of the class. Besler, et al. v. Dept. of the Army, EEOC Appeal No. 01A05565 (December 6, 2001); Woods v. Dept. of Housing and Urban Development, EEOC Appeal No. 01961033 (February 13, 1998). In this regard, it is necessary for the class agent, or the representative, to demonstrate sufficient ability to protect the interests of the class so that the claims of the class members do not fail for reasons other than their merits. Id.
Upon review of the record, we find that the consortium of law firms aiding the Class Agent in the instant matter are clearly experienced in class actions including claims of discrimination based on disability. The record shows that the legal team has more than sufficient legal training and experience to pursue the instant claim as a class action and will protect the interests of the class. Accordingly, the Commission finds that the AJ properly found that the Class Agent found representation to adequately represent the class.
CONCLUSION
After a careful review of the record, and for the reasons discussed above, we find that the AJ's definition of the class is supported by the record, and we discern no basis to disturb the AJ's ultimate certification of the class complaint.
Therefore, the Commission REVERSES the Agency's final order rejecting the AJ's certification of the class and we REMAND this matter to the Agency to take action in accordance with this decision and the ORDER of the Commission as set forth below.
ORDER
The Agency is ORDERED to perform the following:
1. Notify potential class members of the accepted class claim within fifteen (15) calendar days of the date this decision becomes final, in accordance with 29 C.F.R. � 1614.204(e).
2. Forward a copy of the class complaint file and. a copy of the notice to the Hearings Unit of the Baltimore Field Office within thirty (30) calendar days of the date this decision becomes final. The Agency must request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with 29 C.F.R. � 1614.204(f).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 25, 2010
__________________
Date
1 The AJ's decision was not mailed out to the parties until October 28, 2008.
2 The AJ noted that targeted disabilities are defined by the EEOC to include the following disabilities: deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and genetic and physical conditions affecting limbs and/or spine. See EEOC Management Directive 715 (MD-715), App. A.
3 Therefore, we need not address the issue of whether the AJ "sanctioned" the Agency or not when the AJ did not consider the Agency's experts' evidence. We note that we are at the certification stage of the class complaint. As such, we need not weigh the evidence of the experts to determine liability.
4 We note that the Commission has previously granted certification in cases in which class members had different disabilities. See McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (January 14, 2010) (granting class certification to a class of employees defined as "all permanent rehabilitation employees and limited duty employees"); see also Cyncar (certifying a class action in which the members of the class had a variety of disabilities including asthma, cancer, and an abnormal blood clotting disorder).
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0720090019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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