01A02257_r
12-13-2002
Victor E. Vigil, Jr., et al. Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Victor E. Vigil, Jr., et al. v. Department of the Army
01A02257
December 13, 2002
.
Victor E. Vigil, Jr., et al.
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02257
Agency No. FO9906J0340
DECISION
INTRODUCTION
Complainant, an employee at the agency's Pueblo Chemical Depot, filed a
class complaint of employment discrimination alleging harm on the bases
of national origin (Hispanic) and in reprisal for prior EEO activity.
The agency forwarded the class action to an EEOC Administrative Judge (AJ)
for a certification determination, pursuant to 29 C.F.R. � 1614.204(d)(1).
The AJ denied certification because the claims lacked numerosity,
and ordered the agency to process complainant's individual claims.<1>
The agency adopted the AJ's findings, and complainant appealed to this
Commission. For the reasons set forth herein, the agency's decision
is affirmed.
BACKGROUND
In his complaint, complainant alleged class-wide discrimination at the
Pueblo Chemical Depot on the bases of national origin (Hispanic) and in
reprisal for prior EEO activity when:
As a result of a reduction-in-force (RIF) and reorganization, class
members were subjected to discriminatory downgrades, job restructuring,
job classification, and job assignments.
Thirteen individuals signed the formal class complaint. Complainant
listed an additional four names of those �impacted by� the reorganization.
The agency produced its own list of those affected by the RIF and
reorganization, including all those who were terminated, downgraded,
transferred, granted retirement, or laterally reassigned to different
duties. It listed 18 Hispanic employees, 22 Non-Hispanic Caucasian
employees, and two African-American employees. According to the agency,
205 individuals were employed at the facility, including 78 Hispanics
and 78 Caucasians.<2>
In its �Agency Position on [the] Appropriateness of [the] Class
Complaint,� filed with the AJ, the agency argued that the class complaint
lacked numerosity. The agency contended that claims from the 13 named
class members could be processed individually; and further, several
of the named class members had pending claims on the same issues,
and one had settled his complaint. The agency also asserted that the
complaint lacked commonality � only three of the purported class members
were downgraded as a result of the RIF, and two of those elected to
pursue their claims through the Merit Systems Protection Board (MSPB).
Further, the purported class members included both management and union
officials from �all levels� of the organization who could not share common
interests. The agency further contended that the class lacked typicality
because only six of the 13 purported class members had prior EEO activity.
In his decision regarding class certification, the AJ never addressed
commonality or typicality, but found adequate grounds to deny class
certification due to the lack of numerosity. Specifically, the AJ found
that 13 class members was insufficient to constitute a class �so numerous
that a consolidated complaint . . . would be impractical.� The agency
adopted the AJ's reasoning.
On appeal, complainant names 16 additional class members, explaining
that they were not named previously because they feared retaliation.<3>
Complainant contends that the addition of 16 class members meets
numerosity requirements. In response, the agency reiterates its earlier
arguments it made to the AJ. The agency also contends that the addition
of 16 class members to the original 13 still does not satisfy the
numerosity requirement. The agency also notes that only three of the
additional 16 employees were downgraded and none had prior EEO activity.
ANALYSIS AND FINDINGS
The purpose of a class action complaint 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
Tel. Co. of the SW v. Falcon, 457 U.S. 147, 155 (1982) (citations
omitted). Under EEOC Regulations, a class complaint must allege:
(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 these certification prerequisites are
not met. See Garcia v. Department of Justice, EEOC Request No. 05960870
(October 10, 1998).
A class complaint must specifically identify questions of fact or law
that are common to all members of the class. General Tel. Co. of the
SW v. Falcon, 457 U.S. 147 (1982). 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. Mastren v. United States Postal Service, EEOC Request
No. 05930253 (October 27, 1993).
In the present case, complainant has not shown common facts between
the class members. In his complaint and on appeal, complainant lists
a total of 32 employees affected by the RIF, but he fails to identify
how all of these individuals were impacted. The agency's statistics,
by comparison, identify how each employee was affected by the RIF.
The 18 Hispanic employees listed in these statistics, however, do not
share common facts � six received a change from a �wage grade� pay system
to the general schedule pay scale (some of which would constitute a
lateral move, others a downgrade); five, including complainant, received
lateral reassignments; two received a step-increase; and two received a
downgrade.<4> They include both supervisory and bargaining unit employees
in administrative, blue-collar, professional, and technical positions.
See Walton v. Department of Agriculture, EEOC Request No. 05990779 (June
3, 2002) (no commonality found between employees in different types of
jobs at different grade levels).
Complainant also fails to establish typicality. As a practical matter,
�commonality and typicality tend to merge.� General Tel. Co. of the
SW, 457 U.S. at 159, n. 13. Typicality requires some nexus between
the class agent's claims, and the claims of other members of the
class, such as similar employment conditions and similar effects
from the discrimination. Contreras v. Department of the Treasury,
EEOC Appeal No. 01961671 (May 11, 1998) (citing Morrison v. Booth,
763 F. 2d 1371 (11th Cir. 1985)), req. for recons. den., EEOC Request
No. 05980856 (October 22, 1999); see Kennedy v. National Aeronautics
and Space Administration, EEOC Appeal No. 01993626 (April 26, 2001)
(citing Johnson-Feldman, et al. v. Department of Veterans Affairs,
EEOC Appeal No. 01953168 (August 7, 1997) (citations omitted)).
Complainant was not downgraded, and actually assumed supervisory
responsibility as a result of the RIF. Complainant's individual claims
involve disputes with management over the extent of his new supervisory
duties and authority. Further, complainant was one of three employees
responsible for making recommendations for how the facility should
be reorganized. Complainant's claims clearly are not typical of the
employees affected by his recommendations.
When determining whether numerosity exists, relevant factors to consider,
in addition to the number of class members, include geographic dispersion,
ease with which the class may be identified, the nature of the action, and
the size of each claim alleged. See Wood v. Department of Energy, EEOC
Request No. 05950985 (October 5, 1998). While there is no minimum number
required to form a class, and an exact number need not be established
prior to certification, courts have traditionally been reluctant to
certify classes with less than thirty members. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993); Harris
v. United States Postal Service, EEOC Appeal No. 01994220 (March 14,
2002) (citations omitted); cf. Risner v. United States Postal Service,
EEOC Appeal No. 01994323 (September 13, 2002) (noting that courts
have been reluctant to certify classes below approximately 50 members)
(citation omitted).
In the present case, the record reveals only 18 potential class
members who were affected by the RIF. If the basis of retaliation is
included, the class shrinks to 6 potential members. They all work in
the same facility, and complainant presents no evidence that it would
be impractical to consolidate their individual claims. Even if the
additional individuals listed by complainant are included, he has failed
to meet numerosity. See Harris, EEOC Appeal No. 01994220 (class of 30
members from the same facility, in addition to 15 more identified on
appeal, insufficient to establish numerosity).
CONCLUSION
Accordingly, the agency's final decision to deny class complaint
certification, and continue processing complainant's claims as an
individual complaint 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 13, 2002
Date
1The AJ also noted that the complainant, Victor
Vigil, Jr., had withdrawn from the class complaint, and David Vigil would
serve as the class agent in his absence. Nonetheless, Victor Vigil,
Jr. filed the instant appeal, and appears to be the current class agent.
2The race and national origin of the remaining employees was not
identified.
3One of the individuals named on appeal was previously listed by the
class agent as being �impacted by� the RIF.
4The fate of the remaining Hispanic employees affected by the RIF
is unclear from the data presented. A larger number of Non-Hispanic
Caucasian employees were affected by the RIF, even though they comprised
an identical proportion of the facility's work force. The record
also indicates that of those affected by the RIF, six Hispanic and
five Non-Hispanic employees held supervisory positions prior to the
restructuring. Afterwards, only two Hispanics and one Non-Hispanic
retained their management duties.