0120102908
04-06-2017
Steven DavidSon, a/k/a Tyree L.,1 et al., Complainants, v. John F. Kelly, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Steven DavidSon, a/k/a Tyree L.,1 et al.,
Complainants,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120102908
Hearing No. 450-2010-00077X
Agency No. HS-10-CIS-001043
DECISION
Complainant, as putative Class Agent, timely filed an appeal from an EEOC Administrative Judge's (AJ's) decision2 concerning his equal employment opportunity (EEO) class complaint alleging 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 reasons that follow, the AJ's decision is AFFIRMED.
ISSUES PRESENTED
The issue presented herein is whether the EEOC Administrative Judge (AJ) properly denied class certification finding that the class failed to meet the prerequisites of numerosity, commonality, typicality, and adequacy of representation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-13, at the Agency's Central Regional Office facility in Dallas, Texas. On November 30, 2009, Complainant, as putative Class Agent, filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on October 13, 2009, he was not selected for a Supervisory Management and Program Analyst, GS-14 position. Further, Complainant indicated that he believed that the Agency discriminated against African-American employees based on the Agency's "long established practice of not hiring African-Americans above the GS-13 level in [the] Central Region, and its legacy organization (Southern Region)." See Complainant's Formal Complaints of Discrimination. Complainant indicated that several selections involving GS-14 and above positions have been made where "highly qualified and referred" African-American candidates were not selected in favor of less-qualified non-African-American candidates. The case was forwarded to an EEOC AJ for processing as a class complaint. See 29 C.F.R. � 1614.204.
On February 2, 2010, Complainant submitted his evidence in support of class certification. Complainant indicated that his claim of a class-wide discrimination is based on a nationwide review of the Agency's operations. Complainant asserted that, as such, the class should include all individuals in every regional office. Complainant stated that each of the Agency's regions is staffed with approximately fifty employees, representing more than 200 employees combined. Complainant asserted that a "number of highly qualified and referred African-American candidates" over the last 20 years have applied for and been denied GS-14 positions. Complainant then listed himself and seven other individuals who have been denied more than one GS-14 position. In addition, Complainant listed two individuals who were not promoted to the GS-14 level based on deceptive announcements. Complainant reasoned, therefore, that there have been at least 120 to 200 selections to GS-14 positions and above in all regions over 20 years. Complainant also noted that he and his representative had extensive EEO experience and that the representative was a former EEO Director with the Agency. As such, Complainant believed that the class met all the prerequisites of class certification.
The Agency responded to Complainant's request for class certification on February 17, 2010. The Agency asserted that Complainant possessed an extensive knowledge of EEO laws and procedure, but lacked the legal skills and experience in class actions to satisfy adequacy of representation. The Agency also noted that the same argument held for the class representative who, as a former EEO Director, had extensive experience but did not have the legal expertise to proceed as a representative for the class. As to typicality and commonality, the Agency argued that Complainant merely stated summarily that the Agency issued "a Department-wide Order, implementing the federal merit promotion policy." The Agency noted that Complainant did not provide any specific information related to the policy such as a date or title of any such "order." Further, the Agency argued that Complainant had not shown that the proffered class members were subjected to the same policy or similar circumstances. The Agency pointed out that, in fact, one of the proffered class members did not even apply to any GS-14 positions. Finally, as to numerosity, the Agency noted that Complainant identified only eight individuals for the proffered class. Even assuming for sake of argument that they all had been subjected to the same alleged policy, the Agency indicated that eight individuals was not sufficient for class certification. Further, the Agency argued that while Complainant indicated a belief that there were at least 120 to 200 selections for GS-14 positions and above in all regions, he provided no proof for this assertion. The Agency argued that, therefore, Complainant had not established any of the prerequisites for class certification.
On June 6, 2010, Complainant responded to the Agency's arguments and noted that he was in the process of developing a legal team to provide legal representation to the class. Complainant did not address the other arguments raised by the Agency.
On June 24, 2010, the AJ issued her decision denying class certification. The AJ reviewed the class complaint with respect to the prerequisites for class certification: commonality, typicality, numerosity and adequacy of representation. The AJ first determined that Complainant failed to meet the prerequisite of numerosity. The AJ noted that Complainant claimed that there were at least 120 to 200 selections for GS-14 level and above positions from 1989 through 2009. The AJ determined that 20 years was too broad a time period for consideration. Further, beyond Complainant's rough estimates, there was no evidence to support an actual number of selections made during the relevant time period, either for the Central Region or nationwide. The AJ further noted that there was no information on African-American applicants for the positions contested. The AJ also found that the time period raised by Complainant regarding the "legacy" from the former Immigration and Naturalization Services was too broad. The AJ therefore found that any selections occurring before 2003 should be eliminated from consideration.
As to commonality and typicality, the AJ determined that Complainant alleged that he was discriminated against along with other African-American employees who were not promoted to positions beyond the GS-13 level. The AJ found that Complainant established commonality in the matter with regard to the non-selections in the Central Region and that his claim was typical of the members of the class.
The AJ then turned to the final prerequisite of adequacy of representation. The AJ noted that Complainant was not an attorney and that Complainant failed to provide contact information for the class representative who was the former EEO Director. Although Complainant indicated that he was considering legal representation, he had not actually retained counsel. The AJ further noted that Complainant, acting for the class in the instant matter, did not take the opportunity to pursue the necessary discovery to establish information needed for certification. As such, the AJ concluded that Complainant had not established the requirement of adequacy of representation.
The AJ then reviewed the class action with respect to the grounds for dismissal pursuant to 29 C.F.R. � 1614.107(a). The AJ noted that Complainant alleged a cognizable claim which was not dismissible pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The AJ then noted that it did not appear that Complainant had previously filed an identical class claim and the matter could not be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ found that Complainant raised his claim within the 45-day time limit found within 29 C.F.R. � 1614.105(a)(1). The AJ held that the matter at hand could not be dismissed pursuant to 29 C.F.R. � 1614.107(a)(3) and (4) for Complainant did not previously raise this claim within a grievance or with the Merit Systems Protection Board. The AJ summarily noted that the complaint at hand was not moot and that 29 C.F.R. � 1614.107(a)(5) did not apply to the instant matter. Finally, the AJ held that the provisions of 29 C.F.R. � 1614.107(a)(6)- 29 C.F.R. � 1614.107(a)(9) did not apply to the instant class complaint. Therefore, the AJ determined that the matter could not be dismissed procedurally. The AJ concluded, however, that the class complaint should be dismissed for failure to meet the prerequisite elements of numerosity and adequacy of representation.
CONTENTIONS ON APPEAL
Complainant appealed the AJ's decision without receiving a decision from the Agency. We note that by operation of law, "[i]f an Agency does not issue a final order within 60 days of receipt of the administrative judge's decision, then the decision of the administrative judge shall become the final action of the Agency." See 29 C.F.R. � 1614.204(j)(2). Complainant's brief on appeal was submitted by counsel, who was retained just prior to issuance of the AJ's June 30, 2010, decision denying certification. On appeal, Complainant asserted that the AJ's decision improperly denied class certification. As such, Complainant asked that the Commission vacate the AJ's order and remand the complaint for certification of the class.
Complainant specifically noted that the AJ found that Complainant met the prerequisites of commonality and typicality. Complainant argued that the AJ erred in finding that the class did not meet the element of numerosity. Complainant challenged the AJ's finding that 20 years was too broad a time period. Complainant asserted that the merit promotions and appraisal systems in place during the 20-year period had remained the same based on policy and procedures established by the Office of Personnel Management. Further, Complainant argued that the time period is based on when the discriminatory practice began affecting the purported class, which Complainant asserts was over a 20-year period. Further, Complainant noted that the Commission need not have the exact number of class members for certification. Complainant argued that if he found several members in the Central Region, it can be assumed that there are more members at the other regional offices nationwide; therefore, based on ten individuals in one regional office and four other regions involved, there should be enough individuals for class certification.
Complainant also argued that the AJ erred in finding that Complainant did not satisfy the prerequisite of adequacy of representation. Complainant noted that he has now entered into an agreement with Counsel to be the legal representative of the class. Complainant states that the "law firm's litigation capabilities, knowledge, experience, formal training, financial wherewithal, and specific work with class representation" and Complainant's EEO knowledge and experience would be adequate to meet the prerequisite of adequacy of representation.
Complainant requests that, based on the arguments presented on appeal, the Commission vacate the AJ's orders and remand the class complaint to be processed as a certified class complaint. The Agency provided the Commission the record without comment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.204(a)(2) defines a class complaint as 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 requires that the potential class must be sufficiently numerous so that a consolidated complaint by the members of the class, or separate complaints from each member 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. Dep't of the Air Force, EEOC Appeal No. 01A42449 (Sept. 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 (Nov. 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. General Tel. Co. of the Northwest, Inc., v. EEOC, 446 U.S. 318, 330 (1980).
Although courts are reluctant to certify classes with 30 or fewer members, there are no specific numerical cut-off points. Mastren v. U.S. Postal Serv.., EEOC Request No. 05930253 (Oct. 27, 1993). In addition to the number of class members, relevant factors include geographic dispersion, ease with which the class may be identified, the nature of the action, and the size of each claim. See Wood, et al. v. Dep't. of Energy, EEOC Request No. 05950985 (Oct. 5, 1998).
Complainant correctly argues that an exact number of class members is not required at the certification stage. As we have stated in prior decisions the correct focus in determining whether the class is sufficiently numerous for certification purposes is on the number of persons affected by the Agency's allegedly discriminatory practices and who thus may assert claims. See Moten v. Fed. Energy Regulatory Comm'n, EEOC Request No. 05910504 (Dec. 30, 1999). We have long held that those persons to be counted for even a tentative class certification should be those who were affected by the employer's alleged discriminatory actions. See Mastren, et al. v. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993).
Complainant argued that the number of class members was much larger than the 10 initially purported from the Central Regional Office. Complainant asserted that the number of employees should be 120 to 200. Complainant based this number on a 20-year time period and speculation that other African-Americans applied for GS-14 positions in all the other regions within the Immigration and Naturalization Service from 1989 to 2003 and in the Agency's Citizenship and Immigration Service from 2003 to 2009.
The Complainant has not provided support for his estimate for the number of class members. Complainant did not use the discovery period before the AJ to obtain basic information to support his assertion. For example, Complainant did not obtain information as to how many GS-14 positions were filled by the Agency from 1989 through 2009. In addition, he did not request any information regarding how many African-American employees had applied for any GS-14 positions. Even among the 10 initial purported members of the class, Complainant failed to establish that all of them had applied, or been eligible, for promotion to a GS-14 position. Therefore, the Commission finds that, although Complainant need not provide the exact number of class members, he has failed to produce any evidence or support beyond mere speculation to establish that the proposed class meets the prerequisite of numerosity.
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 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (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 requirements is that the interests of the class members be fairly encompassed within the class agent's claim. Id.
We note that the AJ determined that Complainant satisfied these prerequisites. Complainant alleged that he and the other putative class members have not been promoted to positions beyond the GS-13 level within the Agency's Citizenship and Immigration Service, Central Region.
As noted on appeal and in the record, Complainant has clearly argued that, since the mid-1990's, only one African-American male has been selected above the GS-13 level. Complainant asserted that this practice has been in place since the Agency's Citizenship and Immigration Service was part of the Department of Justice as the Immigration and Naturalization Service. Finally, in the submission to the AJ supporting class certification, Complainant contended that the class included all African-American individuals who have applied for GS-14 positions in the Agency's regional system nationwide. Complainant included not only the Central Region where he had been denied a promotion beyond the GS-13 level, but also the Western, Southeast, Northern, and Southern Regions.
The Agency argued before the AJ that Complainant failed to meet the prerequisite of commonality. In essence, the Agency argued that Complainant merely pointed to the Agency's nationwide merit promotion policy generally as the reason for the non-selection of African-American applicants for the GS-14 positions. The Agency asserted that the Complainant failed to point to any common reason for the failure to be selected over the GS-13 level. The Agency claimed that, as such, Complainant failed to establish commonality and typicality.
A showing of commonality and typicality require that Complainant identify an agency practice or policy, the action or operation of which discriminates against the class. In the first instance, Complainant has not identified any practice or policy that is common to the class and that prevented the class from selection to GS-14 positions. Complainant failed to provide any support for his claim that any specific policy or practice was in place.
We note that the AJ reviewed the scope of the class in her analysis of numerosity. We find that the AJ erred in failing to consider these factors while evaluating whether Complainant established commonality and typicality. The AJ stated that 20 years was too broad a time period to be considered part of the class. The Commission agrees with the AJ's conclusion, but not based on lack of relevance, as found by the AJ. Complainant claimed that the Agency had a policy of denying African-Americans promotions to GS-14 positions from 1989 through 2003, as the Immigration and Naturalization Service, and after 2003, when it was reorganized under the Department of Homeland Security. Such a lengthy time period may be relevant under a different set of facts. We find, however, that Complainant has not provided any support connecting the promotions with any policy or practice. Further, Complainant merely asserted without evidence that, if a policy existed, it began with the first entity and continued into the restructured second entity currently found under the Agency. We find in this regard that, again, Complainant provided bald assertions without support or evidence. Further, we note that Complainant failed to use the discovery period in order to develop the record and to provide any support for these assertions. Therefore, we determine that the Complainant has failed to establish commonality.
For the same reasons, Complainant has not shown that there was a common Agency practice or policy in action and that he was subjected to that policy or practice. As such, Complainant has not shown that his claim was typical of the class. Accordingly, the Commission finds that Complainant has not established commonality or typicality.
Adequacy of Representation
The final requirement is that Complainant and/or his representative adequately represent the class. To satisfy this criterion, Complainant or the 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. Dep't of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001); Woods v. Dep't of Hous. and Urban Dev., EEOC Appeal No. 01961033 (Feb. 13, 1998). In this regard, it is necessary for Complainant, or his 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. Competency of counsel therefore is particularly important for the protection of the rights of class members. See Foster and Starks v. Dep't of the Navy, EEOC Request No. 05920483 (Dec. 23, 1992).
On appeal, Complainant informed the Commission that he had retained legal representation, which representative has since been replaced. The original counsel for Complainant summarily stated in support of the appeal that the firm employing her had the "litigation capabilities, knowledge, experience, formal training, financial wherewithal, and specific work with class representation." As with each of the other elements, Complainant provided only conclusory statements and bald assertions that he has met this prerequisite for a class complaint. To satisfy this criterion, however, Complainant must demonstrate that the law firm has sufficient legal training and experience to pursue the claim as a class action. The substitute counsel also did not provide any evidence of his legal experience and training. InIn the absence of any evidence to support the assertion that the substitute counsel could be considered to possess the necessary legal training and experience to pursue the claim as a class action, the Commission finds that Complainant has failed to provide any evidence or support to establish adequacy of representation.
The Complainant's Individual Complaint
EEOC Regulation 29 C.F.R. � 1614.204(d)(7) provides that the agency's final order dismissing a class complaint shall inform the agent either that the complaint is being filed on that date as an individual complaint of discrimination and will be processed under subpart A or that the complaint is also dismissed as an individual complaint in accordance with 29 C.F.R. �1614.107. Because Complainant failed to satisfy the prerequisites for class certification, unless it has already done so, the agency must now process complainant's individual complaint under Subpart A of 29 C.F.R, Part 1614.
CONCLUSION
Accordingly, the AJ's decision to deny class certification was proper and is AFFIRMED. The individual complaint is REMANDED for further processing in accordance with the Order of the Commission, below.
ORDER
To the extent it has not already done so, the Agency is directed to process Complainant's individual complaint in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
April 6, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 When the Agency did not issue a Final Agency Order (FAO) within 40 days of its receipt of the AJ's decision, the AJ's decision became the FAO by operation of law. See 29 C.F.R. �1614.109(i).
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0120102908
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507