Paulette Jones, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01200603671 Agency No. 6H-000-0002-05 Hearing No. 100-2005-00571X DECISION On October 5, 2005, complainant, as class agent, filed an appeal from the agency's September 8, 2005 notice of final action dismissing her class complaint. BACKGROUND At the time of events giving rise to this complaint, complainant worked as a Postal Inspector, ISLE-14, at the United States Postal Inspection Service, Philadelphia Division.2 Complainant filed an EEO complaint dated March 29, 2005, alleging that on November 10, and November 17, 2004, she was denied promotional opportunities based on her race and sex. Complainant alleged that these non-selections are part of a continuing pattern and practice of discriminatory promotion practices in the agency. Complainant sought certification of a class that includes all African-American females at the ISLE-12 level and above who were systematically denied or deterred from applying for promotions at the agency. The promotion deterrence/denial claim also includes a claim that the agency delayed in giving time-in-grade promotions to African-American females at the ISLE-12 level and above. Complainant's complaint was forwarded to the EEOC Washington Field Office for a decision on certification. The Administrative Judge (AJ) issued a decision on August 2, 2005, denying certification of the class. In his decision denying certification, the AJ found that complainant failed to establish the commonality, typicality, and numerosity prerequisites for class certification. Specifically, with regard to commonality the AJ found that the class agent failed to identify a centralized selection policy applicable to all employees at the ISLE-12 level and above. The AJ noted that the promotion processes for the ISLE-12, 13, 14, and 15 level positions are different, there are different competency requirements for each level and the selections are made by different managers nationwide. Thus, the AJ found no thread of commonality. With regard to the typicality requirement, the AJ noted the class agent failed to identify a uniform employment practice or policy which had a discriminatory effect or impact on the putative class as a whole. Thus, the AJ concluded the class agent is unable to establish that she possesses the same interest as the class she seeks to represent and therefore, found she fails to meet the typicality requirement. With regard to numerosity, the AJ noted that because the class agent has not satisfied the commonality and typicality requisites, it is difficult to determine how many ISLE employees levels 12 to 15 share any factual or legal issues common to the class. Thus, the AJ determined that the class agent failed to show that the number of potential class members is sufficiently large to satisfy the numerosity requirement. The AJ also noted that based on his decision to deny certification, complainant's outstanding Motion to Compel Discovery was rendered moot. On September 8, 2005, the agency issued a notice of final action fully implementing the AJ's decision denying certification. On appeal, complainant states that there are unresolved discovery disputes which she claims denied her an opportunity for adequate pre-certification discovery. Specifically, complainant notes that she filed a Motion to Compel Discovery on June 28, 2008, seeking responses to some outstanding pre-certification discovery requests served on the agency on June 7, 2005. Specifically, complainant states that she did not receive responses to her requests for promotion information and statistics, race and sex data for agency officials involved in the promotion process, and selection documentation (including interview notes). Complainant noted the AJ did not rule on the merits of the Motion to Compel, but dismissed her Motion as moot when issuing his August 2, 2005 decision finding that complainant failed to meet the necessary prerequisites for class certification. Additionally, complainant reiterates her claim that the agency employs a highly centralized promotion system which she claims resulted in discrimination of African American females. Complainant states that the agency's promotion system is centered around the Career Leadership Program (CLP). Complainant notes the CLP is under the direction of the Chief Postal Inspector, and is the only means by which a Postal Inspector can reach an ISLE-15 leadership position. Complainant states the agency's promotion system involves a limited number of high ranking officials including the Chief Postal Inspector, the Assistant Chief Inspector of Administrative Operations, the Executive Leadership Team, and the Deputy Chief Inspectors. Complainant states that although promotion from the ISLE-12 to the ISLE-13 level is supposed to be non-competitive, promotions are subject to the discretion of agency management. Complainant alleges that promotion decisions for ISLE-14 level positions all pass through a centralized agency management structure for competitive promotions which complainant claims has resulted in difficulty for African-American females to get promoted. Complainant notes that Postal Inspectors at the ISLE-13 and ISLE-14 level are eligible to participate in the CLP. Complainant states that admission into the CLP is determined by the Chief Postal Inspector and the five member CLP Review Board appointed by the Chief Postal Inspector. Complainant claims the CLP Review Board and the Chief Postal Inspector have the authority to admit applicants into the CLP, award promotions to CLP participants, provide detail assignments for participants, and remove participants from the program. Complainant also states the CLP Board determines finalists for ISLE-15 positions. Complainant claims that African-American females have faced discrimination in admission into the CLP. Complainant cites the affidavit of Employee Y, an ISLE-13 level Postal Inspector residing in Chicago, Illinois, who states that despite being highly qualified, she has been rejected from the CLP. Complainant states that African-American females have also been discriminated against in being placed on the ISLE-15 Selection Register. Complainant notes that in order to be eligible for an ISLE-15 position, a Postal Inspector must be listed on the ISLE-15 Selection Register. Complainant states that despite the agency policy stating that upon completion of the CLP, an ISLE-14 level Postal Inspector is automatically placed on the ISLE-15 Selection Register, "in practice, the Chief Postal Inspector and the CLP Review Board determine which employees are placed on the ISLE-15 Selection Register." Complainant cites the affidavit of Employee Z, an ISLE-14 Postal Inspector from Houston, Texas, who states she was denied admittance onto the ISLE-15 Selection Register by the CLP Review Board in February 2005. Complainant states that she has satisfied the prerequisites for class certification. With regard to commonality, complainant claims the agency's "unitary promotion system for Postal Inspectors" is identical for all African-American females at level ISLE-12 and higher. Complainant states that the agency's promotion decisions are all influenced by the Chief Postal Inspector, or by a panel appointed by the Chief Postal Inspector. Complainant states the Chief Postal Inspector participates as part of the CLP Review Board and plays a vital role in selection decisions. Complainant also claims her non-selection claims are typical of the claims of the class. Moreover, complainant states that there are currently 93 African-American female Postal Inspectors at the ISLE-12 through ISLE-14 levels which is sufficiently numerous to support certification of a class complaint. Finally, complainant notes she is represented by the law firm of Kator, Parks & Weiser, a firm that is currently representing a number of certified classes before the Commission and has also successfully represented African-American employees in a non-promotion class complaint before the Commission. In response to complainant's appeal, the agency requests its final action be affirmed. The agency notes that in her class complaint, complainant seeks to include African-American females at levels 12 and 13, even though complainant has long since advanced from those levels. The agency notes complainant also "seeks to include ISLE-14 African American females who have never even applied (and may not be eligible) for the Career Leadership Program (CLP), a structured career development program to which the [c]omplainant has been admitted since 2003." The agency states that there are separate selection processes for ISLE-13, 14, and 15 selections, distinct competencies for each level, and different selection makers. The agency notes that ISLE-13 involves a non-competitive process while ISLE-14 and 15 involve a competitive process. Further, the agency notes that CLP prepares employees for higher level positions, but it is not a selection process itself. With regard to complainant's claim that there are over 90 members of the putative class, the agency notes that only four individual members have been named. The agency notes that other than naming 93 African-American postal inspectors, complainant has done nothing to define the class and its potential members. The agency argues complainant has not established typicality because she purports to represent employees at different job levels in different locations throughout the country. The agency states some of the employees may never have applied to the CLP process or may have been ineligible to apply; others may have applied and been accepted; and others may have actually been promoted. Additionally, the agency states complainant failed to satisfy the adequacy of representation requirement since it is not clear whether complainant has a claim of discrimination. Also, the agency argues complainant cannot adequately represent the "diverse factual situations" at issue in the complaint. Finally, the agency argues that complainant's allegations would require individual inquiries for every level ISLE-12 to ISLE-13 promotion, every ISLE-13 to ISLE-14 promotion, every ISLE-14 to ISLE-15 promotion, every ISLE-15 to ISES (Inspection Service Executive Service) promotion, every admission to the CLP, and every admission to the ISLE-15 selection register. Thus, the agency argues that a class complaint would not achieve the conservation of resources. ANALYSIS AND FINDINGS 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). The burden is on the party seeking to certify a class to meet all four requirements. Mastren v. United States Postal Service, EEOC Request No. 05930253 (October 27, 1993). Failure of a party to meet any one of the four requirements is sufficient reason for dismissal. See 29 C.F.R. § 1614.204(d)(2); The Estate of Allen P. Spencer v. Department of Agriculture, EEOC Appeal Nos. 0120060669 and 0120061350 (July 8, 2008). In addressing whether a class complaint warrants certification, it is important to first resolve the requirements of commonality and typicality in order to "determine the appropriate parameters and the size of the membership of the resulting class." Fusilier v. Dep't of the Treasury, EEOC Appeal No. 01A14312 (February 22, 2002) (citing Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05960233 (April 8, 1997)). Commonality requires that complainant identify questions of fact common to the class. 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. 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. Belser v. Department of the Army, EEOC Appeal No. 01A05565 (December 7, 2001) (citing Mastren, EEOC Request No. 05930253). At the outset, we address complainant's contention that the AJ failed to rule on her June 28, 2008 Motion to Compel Discovery, in which she claimed the agency failed to provide her promotion information and statistics, race and sex data for agency officials involved in the promotion process, and selection documentation (including interview notes). With regard to complainant's contention that the agency failed to provide her promotion information and statistics, we find complainant's request promotion information and statistics is too vague to support a finding that the agency failed to provide relevant information necessary for certification. With regard to complainant's claim that the agency failed to provide race and sex data for most of the agency officials involved in the promotion process, we find that such information is not necessary at this time to reach a decision on class certification. Similarly, we note that the production of interview notes is also not necessary at this time to reach a decision on whether class certification is appropriate. However, upon review of the record we find the record is still lacking in information to determine whether the agency properly denied certification of the purported class. While complainant contends, and the agency does not dispute, that there are currently 93 African-American female Postal Inspectors in the ISLE-12 level and above, we note there is no specific information surrounding these 93 individuals such as their names, the timeframe that they were employed, the level of the position(s) they occupied with the agency, whether they applied for the CLP, whether they were delayed a time-in-grade promotion, and whether they applied and were non-selected for the ISLE-15 Selection Register, or an ISLE-15 position. Further, although the agency contends that it supplied complainant a list of all postal inspectors by name, gender, race, position title and dates of service, in levels ISLE-14 and ISLE-15 from 2000 to 2005, we note there is no such list in the file presented to the Commission on appeal.3 Moreover, we note that complainant's class complaint alleges discrimination from the ISLE-12 level and above and the agency does not contend to have supplied a similar list for ISLE-12 and ISLE-13 employees during the relevant time frame. Also, while the agency also claims it has set forth reports for the period 2000 - 2005, indicating the number of postal inspector applicants, the number of postal inspectors in every agency job classification, and the number of selectees of postal inspectors in every job classification, broken out by race, national origin, and gender, we find the agency provided no such reports to the Commission on appeal. Further, we note that such reports would not be particularly useful unless they contained the name and grade level of the actual applicants and selectees in addition to their race and gender.4 Moreover, we note while the agency did provide information regarding the CLP, in the form of a "CLP Participants List (BY STATUS) ALL" dated June 20, 2005, we find the time frame covered by this list is unclear. Further, it is unclear whether the category "status" on the list indicates the person was selected (or not selected) into the CLP or whether "status" indicates that the person identified was selected (or not selected) into a higher graded position. Finally, we find the record lacking in information surrounding selections to the ISLE-15 Selection Register and selection to ISLE-15 positions. It is well-established that the party requesting certification has the burden of submitting sufficient evidence to demonstrate satisfaction of the regulatory criteria, and that bare allegations will not suffice in this regard. See Mastren v. U.S. Postal Service, EEOC Request No. 05930253 (October 27, 1993). However, in this case, we find that the record is lacking in evidence necessary to determine whether certification is appropriate. The Commission has held that the parties are entitled to development of the evidence as to matters pertaining to certifications. See Wallace v. Department of Justice, EEOC Appeal No. 01A30937 (March 2, 2004); Estate of Goodman v. Department of Justice, EEOC Appeal No. 01995812 (March 25, 2002). Therefore, we shall remand the complaint so that the agency may supplement the record with discovery materials specified in the Order herein and the AJ shall reconsider whether certification of the class complaint is proper. Accordingly, the agency's decision concerning certification of the class complaint is VACATED, and the complaint is REMANDED to the agency for further processing pursuant to this decision and the Order herein. ORDER The agency shall take the following actions: 1. Within 30 calendar days from the date this decision becomes final, the agency shall forward the entire record to the Hearings Unit of the Washington Field Office. In its transmittal letter, the agency shall request that an EEOC Administrative Judge be assigned for the purpose of undertaking additional discovery to obtain information currently absent from the record, and that the discovery shall include the race and sex for the persons who were not selected for the CLP, the race and sex for the persons who were not selected for the ISLE-13 through ISLE-15 level positions, and the race and sex for the persons not placed on the ISLE-15 Selection Register, during the relevant period. The transmittal letter will also request that the AJ render a decision on the issue of class certification, pursuant to 29 C.F.R. §1614.204, upon completion of this discovery phase. 2. While the above action is pending, the agency is to cease processing of complainant's individual complaint, and hold its processing in abeyance. Should the AJ's decision reject the class action complaint, then the agency must notify complainant that her individual complaint will be deemed filed as of the date of the final action, and that it will be processed under the appropriate EEOC Regulations. See 29 C.F.R. § 1614.204(d)(7). The agency shall provide a copy of the transmittal letter to the Compliance Officer as referenced herein. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408) 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 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 (M0408) 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 (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 (Z0408) 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 October 8, 2008 __________________ Date 1 Due to a new data system, this case has been redesignated with the above-referenced appeal number. 2 "ISLE" refers to the agency's Inspection Service Law Enforcement (ISLE) pay grades. 3 The agency is reminded that upon notification of an appeal it is to supply the Commission with the complete complaint file. 29 C.F.R. § 1614.403(e); Mugg v. Equal Employment Opportunity Commission, EEOC Request No. 05A41168 (October 6, 2005). 4 While we note complainant supplies a copy of a "U.S. Postal Service Diversity Development Reporting System Inspection Service Occupations" which appears to have been supplied by the agency during discovery, we cannot interpret the information provided in this report. For example, it is unclear why there are a number and position listed in each category (i.e. 03017036 and Chief Inspector) and what the breakdown by race and gender indicate under the corresponding numbers and positions identified. ?? ?? ?? ?? 2 0120060367 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 9 0120060367