0120073347
06-01-2010
Steve Ponce, et al., Complainants, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Steve Ponce, et al.,
Complainants,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120073347
Agency No. HS-06-CBP000166-150101
Hearing No. 540-2006-00096X
DECISION
Complainant, as class agent, filed an appeal with this Commission from
the agency's decision dated May 4, 2007, which decision adopted the
decision of an EEOC Administrative Judge (AJ). The AJ denied class
certification and dismissed the class complaint which alleged 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. For the
following reasons, we VACATE the agency's final order.
BACKGROUND
The record reveals that pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., complainant, on behalf of
himself and the putative class, filed a class complaint on the bases of
race and national origin (Hispanic) on or about April 12, 2006. In the
class complaint, complainant (as class agent) alleged that management:
1. Denied or stripped one or more members of the class of
their employment rights and opportunities because of their race
and nationality all in violation of Title VII;
2. Subjected one or more of the class members to degrading,
humiliating and meaningless tasks designed to intimidate the
members;
3. Subjected one or more of the class members to positions
without a weapon and/or bullet proof vest, putting them in
"harms way" and "causing them to fear for their lives";
4. Subjected one or more of the class members to adverse
employment actions including: threats of termination; wrongful
termination; failure to hire; failure to promote; violations of
the Uniformed Services Employment and Reemployment Rights Act;
harassment; retaliation; and discriminatory testing;
5. Engaged in a pattern and practice of considering
nationality and race for any vacant positions, preferring
non-Hispanic employees, or demanding from male Hispanic candidates
qualities, credentials, and experience not required of other
non-Hispanic candidates;
6. Used race and nationality in an open and notorious
fashion to deny Hispanic male applicants for employment
opportunities to the point that many qualified male Hispanic
employees and potential applicants for employment have not
submitted applications for other positions, realizing that their
applications would probably be rejected; and
7. Engaged in a historic and undeniable pattern of disparate
treatment in the terms, conditions and advancement of Hispanic
males and their Anglo counterparts at the port of San Luis. 1
The agency transferred the case to an AJ to determine whether the
class should be certified. An AJ issued a decision rejecting the class
complaint for certification. In his decision, the AJ found that the
proposed class representative (Robert M. Cook, Sr.), an attorney,
did not conduct discovery after the AJ authorized the parties to
undertake discovery. Further, the AJ found that Robert M. Cook, Sr.,
lacked any significant employment law experience. The AJ determined
that the class complaint failed to satisfy the regulatory requirements
of adequate representation necessary for class certification pursuant
to 29 C.F.R. � 1614.204 (a)(2)(iv).
The AJ did not rule with respect to any of the other criteria for
certification of the class complaint. The agency's final order fully
implemented the AJ's decision.
On appeal, complainant submits a copy of correspondence sent to the AJ,
dated April 5, 2007, which refers to the previously submitted resum�
of Robert M. Cook, Sr. Complainant also includes the resum� of an
associate attorney, A2, employed by the same firm (The Law Offices of
Robert M. Cook). Complainant argues2 that EEOC Regulations do not mention
any specific qualifications that the class representative must possess.
Complainant also argues that the AJ did not provide any supporting
rationale for his determination that Robert M. Cook, Sr. was not an
adequate representative. Contrary to the AJ's finding, complainant
states that Robert M. Cook, Sr. has extensive experience representing
employees and has a lengthy career in labor and employment law. Moreover,
complainant argues, A2, has more than 20 years' experience practicing law.
On appeal, the agency argues that complainant's appeal is untimely.
The agency further argues, as it did before the AJ, that the class
complaint fails to meet any of the four requirements for certification.
ANALYSIS and FINDINGS
The purpose of class complaints is to economically address claims "common
to [a] class as a whole ... turn[ing] on questions of law applicable
in the same manner to each member of the class." General Telephone
Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982) (citations
omitted). Under EEOC Regulations, a class complaint must allege that:
(i) the class is so numerous that a consolidated complaint concerning
the individual claims of its members is impractical; (ii) there are
questions of fact common to the class; (iii) the class agent's claims 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). The agency may reject
a class complaint if any of the prerequisites are not met. See Garcia
v. Department of Justice, EEOC Request No. 05960870 (October 10, 1998).
Regarding the adequacy of representation requirement, the Commission
has previously found that where a class agent has satisfied the
commonality, typicality, and numerosity requirements, but not the
adequacy of representation requirement, the class may be conditionally
certified to provide the class agent time to obtain qualified counsel.
Southerland v. United States Postal Service, EEOC Appeal No. 0120034200
(November 22, 2006) (citing EEOC Management Directive 110 (EEO MD-110),
Chapter 8, Section IV(A) (November 9, 1999)), request for reconsideration
denied, EEOC Request No. 0520070214 (June 29, 2007).
As a preliminary matter, we find complainant's appeal is timely.
Complainant's attorney states that he received the agency's final order
on May 15, 2007. The agency does not show that complainant's attorney
received the agency's final order prior to May 15, 2007. On June
14, 2007, complainant's appeal was received by the EEOC by facsimile
transmission dated June 14, 2007.3 Therefore, we find complainant's
appeal was filed within the 30-day time limit provided by 29 C.F.R. �
1614.402.
In the instant matter we confine our discussion, as did the AJ, to
consideration of whether the class complaint meets the certification
requirement for adequate class representation. While on appeal, the
agency addresses the remaining criteria, complainant's brief does not,
and the Commission is without the AJ's thoughts regarding any criterion of
class certification save that of adequate representation by the attorney
responsible for filing the class complaint.
In order to satisfy the adequacy of representation criterion, the class
representative should have no conflicts with the class and should
have sufficient legal training and experience to pursue the claim.
See Byrd v. Department of Agriculture, EEOC Request No. 05900291 (May
30, 1990). This prerequisite requires that the representative will
fairly and adequately protect the interests of the class. Clopton,
et al. v. Environmental Protection Agency, EEOC Appeal No. 01A62246
(October 12, 2006), request for reconsideration denied, EEOC Request
No. 0520070139 (January 9, 2007). It is necessary that the class
representative 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.
We consider the lengthy resum� of Robert M. Cook, Sr. We further
consider that in addition to the instant case, Commission records show
that during the pendency of the underlying complaint, The Law Offices
of Robert M. Cook, represented several federal sector employees with
individual complaints, some of whom are identified as class agents in the
instant complaint. Among those cases, a few have proceeded through the
EEO complaints process to the appellate level where appeals are currently
pending or have been decided by the Office of Federal Operations of the
Equal Employment Opportunity Commission.4 None of these cases reached
the merits of the underlying complaint and none of these cases involved
class claims. We find that complainant has the burden of demonstrating
that his selection of representative possesses the requisite skill and
we find that he has not met that burden. We agree with the AJ that
complainant has failed to show that Robert M. Cook, Sr. has sufficient
federal sector EEO experience, other EEO legal experience, or class
litigation experience in order to adequately represent the instant
class.5
Nevertheless, we find that denial of class certification based on
inadequate representation and for no other failure, was premature and
that the case should be remanded to the AJ to afford complainant an
opportunity to secure adequate representation for the class. Mohamed
v. United States Postal Service, EEOC Appeal No. 01A33869 (December 16,
2004), request for reconsideration denied, EEOC Request No. 0520050455
(February 16, 2005). After complainant has been given an opportunity to
obtain representation and conduct adequate discovery, then the AJ shall
issue a new decision determining whether certification of the class is
appropriate pursuant to 29 C.F.R. �1614.204.
CONCLUSION
The Commission VACATES the agency's decision not certifying the class
complaint and we REMAND the class complaint to the agency for further
processing as described in the Order herein.
ORDER
The agency shall submit a copy of the class complaint file to the Hearings
Unit of the appropriate EEOC field office within 15 calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth herein
that the class complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall provide complainant, the
class agent, with the opportunity to obtain adequate representation
for the class. After such an opportunity has been granted, and after
appropriate opportunity for discovery has been granted, the Administrative
Judge shall issue a new decision pursuant to 29 C.F.R. � 1614.204(d)(7)
determining whether to certify the class complaint. After the issuance
of the Administrative Judge's new decision, the agency shall then issue
a final order pursuant to 29 C.F.R. � 1614.204(d)(7) as to whether it
will implement the decision of the Administrative Judge.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 tends 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 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 (R0408)
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 (Z1008)
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
June 1, 2010
__________________
Date
1 The record indicates that the claims identified in the class complaint
have been the subject of additional clarification in the pre-certification
process before the AJ. We note the AJ did not set forth the claims
and we have presented the claims with minor editing, as framed in the
initial complaint.
2 Complainant's brief on appeal is signed by A2.
3 The agency argues that it was told after contacting the EEOC on July 3,
5, and 12, 2007, that no appeal had been received from the class agent
as of July 12, 2007. Even if that is correct, the record shows that
an appeal was filed by the class agent which is dated by the facsimile
machine as being transmitted on June 14, 2007, and is dated as received
by the EEOC on June 14, 2007.
4 For example, Jesus Mata v. Department of Homeland Security, EEOC Appeal
No. 0120072518 (October 29, 2007); Robert Cuevas v. Department of Homeland
Security, EEOC Appeal No. 0120070430 (July 10, 2008); James R. Dunn
v. Department of the Interior, EEOC Appeal No. 0120093113 (pending).
5 We further note that A2 does not appear to be currently associated
with the Law Offices of Robert M. Cook.
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0120073347
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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