01993583
11-21-2000
Veronica Young, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (United States Coast Guard) Agency.
Veronica Young v. Department of Transportation
01993583
November 21, 2000
.
Veronica Young,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
(United States Coast Guard)
Agency.
Appeal No. 01993583
Agency No. DOT-2-98-2126
Hearing No. 120-98-2126
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) class complaint of
unlawful employment discrimination in violation of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000 e. <1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant sought to bring a class complaint
on behalf of minority employees whom she alleged were discriminated
against in promotion and hiring practices. For the following reasons,
the Commission reverses in part, and vacates and remands in part the
agency's final decision.
The record reveals that the complainant, a Supply Technician (GS-2005-06)
at the agency's Engineering Logistics Center, Baltimore, Maryland
facility, sought counseling on behalf of a class of individuals alleging
discrimination as described above. She then was instructed to file a
formal EEO complaint and did so in June, 1998.<2>
The Administrative Judge's Decision on Class Certification
The matter was referred to an EEOC administrative judge for determination
of whether the complainant's claims should be certified as a class
complaint. Based on the record before her, the AJ recommended that the
class should not be certified because the complainant failed to assert
that a specific practice of the agency was discriminatory. 29 C.F.R. �
1614.204(c)(1). She also determined that the complainant failed to meet
the criteria of numerosity and adequacy of representation set forth in
our regulations. 29 C.F.R. � 1614.204(a)(2). In particular, she noted
that the complainant only identified 5 class members which she concluded
was not so numerous that a consolidated case would be impractical.
The AJ also found that the complainant did not identify a representative
for the class other than herself and that the complainant did not possess
the requisite knowledge, experience or legal skills to adequately
represent the interests of the class. In the view of the AJ, the
complainant did not demonstrate that she had sufficient resources to
meet the expenses of pursuing a class action or that she had any special
experience in litigating a class action complaint.
Finally, the AJ concluded that she could not reach the issues of
typicality or commonality because the complainant did not identify a
policy or practice which she alleged to be discriminatory.
The Agency's Final Decision
The agency's final decision adopted the AJ's decision rejecting class
certification and also found that the complainant's individual complaint
was untimely filed and should be dismissed. Specifically, the agency
found that the complainant had received her notice of right to file
a complaint on May 20, 1998 but did not file a complaint until June
29, 1998.
In her appeal, the complainant contends that the agency's decision to
dismiss her complaint as untimely filed was incorrect because she had
agreed to several written extensions of the counseling period and that
counseling did not finally conclude until June 30, 1998. She contends
she timely filed her complaint on June 25, 1998 even before the
counseling period expired. She does not address the issues of class
certification. The agency did not submit any additional arguments
on appeal.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ
will be upheld if supported by substantial evidence in the record. The
AJ's legal conclusions are subject to de novo review. EEOC Management
Directive (MD) 110, Chapt. 9-16. (November 9, 1999). In this case, the
AJ's conclusions rejecting certification of the class as asserted by the
complainant are legal conclusions subject to de novo review. Our review
of the AJ's conclusions leads us to conclude that additional information
should have been produced before a decision regarding certification
was reached. Under procedures set forth in our regulations, the AJ
may require either the complainant or the agency to submit additional
information on the issue of certification. 29 C.F.R. �1614.204(d)
(1). Additionally, the Commission finds that the AJ was not correct
in her conclusion that the class complaint lacked specificity or detail
because the complainant alleged, very clearly, that the agency's hiring
and promotion of employees discriminated against its minority employees.
Having found that the complainant was sufficiently specific in her
claim, we also find that the AJ erred in concluding that she could not
determine whether the complainant's claim met the standard for typicality
and commonality. Commonality is established when a common thread of
discrimination confronts all members of a class and the class claims
will share common questions of law and fact. Conanan v. FDIC, EEOC No.
01952486 (January 13, 1998)(cancellation of vacancy announcements and
pre-selection of white candidates).
Typicality is similar to commonality and requires a showing that the
claims of the agent are typical of the claims of the class. Id.
Although they need not be identical, the claims must be sufficiently
typical to encompass the general claims of the class members so that it
will be fair to bind the class member by what happens with the agent's
claims. Id. In this case, a preliminary review of the claims of the
complainant when compared to the other five putative class members
indicates that each of them alleged a common claim of discrimination
based on their race<3> in not being promoted to a higher graded
position although qualified and that Caucasian employees were promoted
or hired instead. In addition, the complainant claims that there were
several promotions and hires made during a specific time period for
which she and each of the putative class members were qualified but
were not selected and a Caucasian employee was selected or promoted.
Thus, we conclude that the complainant's claim met the requirements of
typicality and commonality in alleging a pattern and practice of race
discrimination in the agency's hiring and promotion practices in the
Retail Operations Branch, Engineering Logistics Center.
Our only remaining concern is the extent of the positions covered by
the class where at least one of the class members held the position of
Property Disposal Clerk GS-7, a different title than that held by the
other class members and at a higher grade level than the others all of
whom were Supply Technicians GS-6. The complainant also alleged that
the positions which were filled differed in title and grade ranging
from Supply Technician GS-5 to Inventory Management Specialist GS-11.
The complainant, herself, indicated to the EEO counselor that blacks
and other minorities have not progressed past the GS-7 level. On this
issue, the AJ should determine through additional discovery whether
the class allegations concerned other higher level positions and if
so, whether additional class members can be identified. It should
be emphasized that there must be more than an �across the board�
allegation of discrimination and that allegations of underlying facts
which raise the inference of a pattern of discrimination common to the
class members must be provided. Such evidence could take the form of
affidavits or statements of employees in other types of positions or
at different grade levels, who allege they were discriminated against
when Caucasian employees were promoted. Conanan, supra citing General
Telephone Co of Southwest v. Falcon, 457 U.S. 147 (1982); See also
Howard et. al v. Department of Commerce EEOC No. 01956455 (June 4,
1997),(reconsideration denied, EEOC Request No. 05970855)(October 24,
1997), (Across the board class formation not necessarily barred where
there is significant proof of a generalized policy of discrimination).
On the question of numerosity, we have stated that no set number of
class members is required to meet the numerosity prerequisite and
each case must be evaluated based on the particular circumstances
involved. Conanan, supra. In this particular case, no information is
known about the number of minority employees employed in this Branch.
This information would be crucial to a decision-maker in judging the size
of the potential class and whether it meets the requirement of numerosity.
Although the EEO counselor alludes to a demographic profile of the office
which was provided to the complainant, we see no evidence that such a
document was considered by the AJ as it is not present in the record
before us nor was it mentioned by the AJ in her findings. On remand,
such information should be produced as well as numerical information
indicating the number of non-white employees, and their positions,
titles and grade levels within the Engineering Logistics Center.
Finally, the AJ concluded that the complainant did not demonstrate
that she could provide adequate representation of the interests of the
class because she had no legal experience or experience in litigating a
class complaint. Such considerations are well-founded but should not
preclude the complainant from the opportunity of seeking satisfactory
representation for the class. The AJ should consider conditionally
certifying the class with the caveat that the class obtain adequate
representation before proceeding through a hearing on the merits.
Procedural Issue
The agency dismissed the complainant's individual complaint based on
the fact that she received the Notice of the Right to File a Complaint
on May 20, 1998 but did not file her formal complaint until June 29,
1998 or after the 15 day time limit for filing a complaint had expired.
The complainant contends that she signed two extensions of the counseling
period, first extending it to May 27, 1998 and then extending it to
June 30, 1998. The record fully supports her statements as it contains
copies of signed forms extending counseling until June 30, 1998.<4> See
McLachlan v. Department of the Army, EEOC No. 01990339 (March 20, 2000)
(Extension of counseling period extended time for filing complaint).
Furthermore, there is no evidence to support the agency's contention that
the complainant filed her complaint on the date alleged by the agency.
Therefore, based on the record before us the agency has not sustained
its burden of proving the untimeliness of the complainant's individual
complaint.
CONCLUSION
After a careful review of the record, the Commission finds that the record
was insufficient to support the AJ's conclusion that the proposed class
should not be certified. For this reason, we Vacate the agency's FAD
and Remand the issue of class certification to the appropriate District
Office of the EEOC for supplementation of the record as indicated below.
We also conclude that the agency's decision to dismiss the complainant's
individual complaint for untimeliness was in error and, therefore, we
Reverse that part of the agency's decision. The individual complaint
shall be reinstated and held in abeyance pending the AJ's determination
of the question of certification of a class complaint.
ORDER
This matter is remanded to the Baltimore District Office for assignment
to an Administrative Judge and supplementation of the record on the
issue of class certification;
The agency shall produce a workforce profile of the Engineering Logistics
Center, along with information indicating the number of minority
employees, including their race, position, title and grade level;
The agency shall produce additional statements from the complainant as
well as from other employees regarding the existence of additional claims
of race discrimination<5> in hiring and promotions beginning with those
employees cited by the complainant as potential witnesses in the EEO
Counselor's Report and any other information deemed necessary by the AJ;
The AJ shall issue a new decision either certifying or dismissing the
class complaint.
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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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").
FOR THE COMMISSION:
Carlton M. Hadden, Director
Office of Federal Operations
November 21, 2000
Date
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.
2This complaint appeared to be an individual complaint but contained a
statement indicating the existence of class claims thereby serving both
purposes.
3The complainant alleged that she was discriminated against because of
her race (black) as did four other complainants. One other complainant
claimed that her race (Filipino) national origin (Asian/Pacific Islander),
and age was the basis of her non-selection.
4Our regulations only permit the extension of counseling for one sixty
day period. 29 C.F.R. �1614.105(e).
5The AJ will need to determine whether age is a common claim by the
class members as it was raised by some but not all of the complainants
as a basis for discrimination.