01a46056
09-20-2005
Rosa M. Licon, et al. v. Social Security Administration
01A46056
September 20, 2005
.
Rosa M. Licon, et al.,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A46056
Agency No. 01-0316-SSA
Hearing No. 350-2001-08278X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, hereinafter the class agent,
filed a formal EEO complaint on May 8, 2001, alleging that the agency
discriminated against her and others similarly situated on the basis of
national origin (Hispanic) when:
(1) the agency failed to acknowledge and compensate special skills
including speaking, translating, reading, and writing Spanish to the
same extent that other special skills workers were being compensated;
Spanish-speaking employees were being channeled into the Social Security
Insurance (SSI) program, where working conditions were more demanding
and career opportunities were limited;
non-Hispanic employees with Spanish language ability are recognized and
promoted for their work while Hispanic employees with the same ability
are not recognized and promoted;
Hispanic employees are required to take Spanish language skill tests
even when hired under non-bilingual job announcements; and
Hispanic employees are approached by supervisors and asked to perform
bilingual interviews.
The agency referred the complaint to the appropriate EEOC District Office
for determination by an Administrative Judge (AJ) as to whether a class
should be certified. Following review of the record, the AJ determined
that a class should not be certified, because the class complaint did
not meet the prerequisites for certification. More specifically, the AJ
found that while the proposed class (all Hispanic bilingual employees
of the agency) appeared to meet the prerequisite of numerosity, the
claims of the class agent did not share common facts with, nor were they
typical of, the claims of other putative class members. The AJ noted
that the class agent had been hired specifically to fill a bilingual
position, and had signed an agreement to use her bilingual skills as a
condition of employment. The AJ further found that no subclass existed
with regard to Hispanic employees hired to fill bilingual positions,
as the class agent failed to proffer even anecdotal evidence to raise an
inference that Hispanic bilingual employees are disadvantaged relative
to non-Hispanic bilingual employees, i.e., that she had not provided
specific, detailed information, showing that other individuals were
personally affected by the agency's alleged discriminatory practices
and policies. The AJ also noted that, although the class agent had been
employed in the agency's SSI program in the past, she was not currently
employed in SSI. Given his conclusion with regard to commonality and
typicality, the AJ did not reach the question of whether the class agent
had established adequacy of representation. The agency issued a final
agency order accepting the AJ's determination.
The class agent appealed the denial of certification. Neither the class
agent nor the agency provided any statement in support of or opposing
the appeal.
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 of the class are typical of the claims
of the class; and (iv) the agent of the class, or, if represented,
the representative, will fairly and adequately protect the interests
of the class. 29 C.F.R. � 1614.204(a)(2). A class complaint will
be dismissed if it does not meet each of these four requirements.
29 C.F.R. � 1614.204(d)(2); EEO Management Directive 110, Chapter 8, �
III, � A (November 9, 1999). The party seeking to certify a class bears
the burden of proving that the class complaint meets these requirements.
See Mastren v. United States Postal Service, EEOC Request No. 05930253
(October 27, 1993).
The purpose of the commonality and typicality requirements is to ensure
that class agents possess the same interests and suffer the same injury
as the members of the proposed class. General Telephone. Co. of the
Southwest v. Falcon, 457 U.S. 147, 156-57 (1982); Moore, et al. v. United
States Postal Service, EEOC Appeal No. 01A31701 (July 29, 2004). The
putative class agent must establish an evidentiary basis from which one
could reasonably infer the operation of an overriding policy or practice
of discrimination. Garcia v. Department of the Interior, EEOC Appeal
No. 07A10107 (May 8, 2003). Generally, this can be accomplished through
allegations of specific incidents of discrimination, supporting affidavits
containing anecdotal testimony from other employees who were allegedly
discriminated against in the same manner as the class agent, and evidence
of specific adverse actions taken. Id.; Belser v. Department of the
Army, EEOC Appeal No. 01A05565 (December 6, 2001) (citing Mastren, EEOC
Request No. 05930253). Conclusory allegations, standing alone, do not
show commonality. Garcia, EEOC Appeal No. 07A10107 (citing Mastren, EEOC
Request No. 05930253). Factors to consider in determining commonality
include whether the practice at issue affects the whole class or only
a few employees, the degree of 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. Garcia,
EEOC Appeal No. 07A10107 (citing Mastren, EEOC Request No. 05930253).
The overriding typicality principle is that class agents must possess the
same interest and suffer the same injury as members of the proposed class.
Johnson-Feldman, et al. v. Department of Veterans Affairs, EEOC Appeal
No. 01953168 (August 7, 1997) (citing General Telephone v. Falcon,
457 U.S. at 156). Typicality requires that the claims of the class be
encompassed within the claims of the class agent. Id. at 160.
Here, the class agent has raised five claims of discrimination (see
supra 1-5). For claims 1 through 3, the class agent has not met the
burden of showing preliminary factual support for the claims. She has not
proffered evidence, anecdotal or otherwise, to raise an inference that
Hispanic bilingual employees are disadvantaged relative to non-Hispanic
bilingual employees.
Claims 4 and 5 address treatment of bilingual Hispanic employees who
were not hired under bilingual announcements and Hispanic employees
whose supervisors request that they perform bilingual interviews.
The class agent had been hired specifically to fill a bilingual position
and had signed an agreement to use her bilingual skills as a condition
of employment. Thus, her claims are not typical of the class she seeks
to represent in claims 4 and 5.
Accordingly, the Commission finds that the class complaint fails to meet
the prerequisites for certification.<1> Therefore, the final agency
order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 20, 2005
__________________
Date
1Given its determination with regard to commonality and typicality,
the Commission need not reach the question of adequacy of representation.