King W., et.al., 1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal Nos. 0120140848 and 0120150803 Hearing No. 420-2013-00203X Agency No. ARCEMOBIL12SEP04346 DECISION Complainant, the putative Class Agent, filed appeals from the Agency's November 19, 2013, final order, and final decision dated November 12, 2014, concerning his equal employment opportunity (EEO) 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. The Commission accepts the appeals pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order dated November 19, 2013, and final decision dated November 12, 2014. ISSUES PRESENTED The issues presented on appeal are: 1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly determined that the class complaint should not be certified because it failed to meet the criteria set forth in the Commission's regulations at 29 C.F.R. § 1614.204(a)(2); and 2) and whether the Agency properly found that Complainant did not prove that he was subjected to unlawful discrimination with respect to his individual complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Representative, Electrical Engineer, GS-850-12, for the U.S. Army Corp of Engineers in the Mobile District, Gulf Coast Area Office, at Eglin Air Force Base in Florida. In 2011 and 2012, management denied Complainant's requests for continuing education related to his Building Industry Credentials Service, International (BICSI)/Registered Communications Distribution Designer (RCDD) Certification. On March 1, 2013, a supervisor included a comment in Complainant's fiscal year 2012 annual evaluation that said Complainant "needs to develop teamwork skills to create more collaborative relationships." Nevertheless, Complainant received an "Outstanding" rating on his annual evaluation. On December 3, 2012, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American) and color (Black) when: 1. In August 2012, the Gulf Coast Area Engineer (Area Engineer or S1) allegedly commented that he would no longer pay for training for Complainant because he did not want Complainant to have more credentials than he; and 2. In March 2011 and September 4, 2012, the Gulf Coast Area Engineer denied Complainant's training request for continuing education related to his Building Industry Credentials Service, International (BICSI)/Registered Communications Distribution Designer (RCDD) Certification. On March 18, 2013, Complainant amended his complaint to further allege that the Agency retaliated against him because of his previous protected EEO activity when: 3. On March 1, 2013, his supervisor included a comment in his FY 2012 annual evaluation that said Complainant "needs to develop teamwork skills to create more collaborative relationships" in an effort to justify not providing him further training related to his RCDD professional certification. During the investigation of his complaint, Complainant requested that the complaint be processed as a class complaint. Complainant stated that the class is comprised of "Black Male Engineers serving as Quality Assurance Representatives in Construction Division Field Offices of South Atlantic Division, US Army Corps of Engineers." Complainant stated that, in addition to himself, S1 discriminated against "other Black Males serving as Quality Assurance Representatives at the Gulf Coast Area Office in regards to training. The names of those Quality Assurance Representatives are [CW1] and [CW2]." The Agency referred the complaint to an AJ. On July 31, 2013, the AJ issued the parties an Acknowledgement and Order for Class Certification. The AJ ordered the parties to conduct discovery for 60 days on the issues of typicality, commonality, numerosity, and adequacy of representation standards necessary for certification of a class complaint. As part of discovery, Complainant, as the representative of the class, was directed to submit a legal brief discussing how the proposed class met the class certification requirements. Complainant was informed that if he did not submit the brief as directed, it would result in dismissal of the complaint. Discovery ended on October 4, 2013, neither party initiated discovery, and Complainant did not submit the required brief. The Agency submitted a brief to the AJ in which it maintained that the class did not meet the criteria for class certification. In an Order dated November 4, 2013, the AJ denied class certification and dismissed the class complaint. The AJ found that Complainant did not meet the requirements for class certification found at 29 C.F.R. § 1614.204. However, the AJ ordered the Agency to continue processing Complainant's individual complaint of discrimination. On November 19, 2013, the Agency issued a decision adopting the AJ's finding that Complainant did not meet the requirements for class certification. Complainant subsequently filed an appeal on December 23, 2013, which the Commission docketed as EEOC Appeal No. 0120140848. The Agency investigated Complainant's individual complaint from June 5, 2013 until July 2, 2013. After the investigation of the individual complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. When Complainant did not request a hearing on his individual complaint, the Agency issued a final decision on November 12, 2014, pursuant to 29 C.F.R. § 1614.110(b). Specifically, the Agency concluded that Complainant failed to prove that he was subjected to unlawful discrimination. Complainant filed an appeal of that decision, which the Commission docketed as EEOC Appeal No. 0120150803. In the interest of administrative efficiency, we consolidate the appeals and address them herein. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency improperly defined the class, and that it should consist of hundreds of former and present African American, black, male Engineers. The Complainant contends that the Agency did not provide adequate information that he requested when he notified the Agency that he wanted to pursue a class action, and requests that the Commission sanction the Agency. Regarding his individual complaint, Complainant mainly reiterates his claim that he was continuously denied training that the Agency provided to a White engineer (C1) who served in the same capacity at a different field office under the same Construction Division Chief and District Engineer. In reply, the Agency asserts that the proposed class does not meet the criteria for certification of a class action. The Agency also asks that we affirm its November 12, 2014 final decision because a preponderance of the evidence of the record does not establish that Complainant was subjected to discrimination in his individual complaint. ANALYSIS AND FINDINGS Class Certification EEOC Regulation 29 C.F.R. § 1614.204(a)(2) states that 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 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. The class agent, as the party seeking certification of the class, carries the burden of proof, and it is his obligation to submit sufficient probative evidence to demonstrate satisfaction of the four regulatory criteria. Anderson, et al. v. Dep't of Def., EEOC Appeal No. 01A41492 (Oct. 18, 2005); Mastren, et al. v. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993). An agency must forward a class complaint to an AJ, who will determine whether the class complaint meets the criteria for certification. 29 C.F.R. § 1614.204(d). The AJ may reject a class complaint if any one of the four prerequisites is not met. See Garcia v. Dep't of Justice, EEOC Request No. 05960870 (Oct. 1, 1998); 29 C.F.R. § 1614.204(d)(2). 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 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982). Both commonality and typicality serve as guideposts for determining whether, under the circumstances, maintenance of a class action is economical and whether a proposed class agent and the remaining potential class members' claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Id. 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. Garcia v. Dep't of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003). Typicality, on the other hand, requires that the claims or discriminatory bases of the class agent be typical of the claimed bases of the class. Falcon, 457 U.S. 147. Id. The underlying rationale of the typicality and commonality requirement is that the interests of the class members be fairly encompassed within the class agent's claim. Id. Here, Complainant contends that the members of the class were subjected to discrimination by the same supervisor when he denied them BICSI/RCDD training. As such, this class complaint concerns the same Agency action, i.e., denial of BICSI/RCDD training by the same Agency official. Therefore, we find that Complainant established commonality. We further note that the members of the class are within the same protected classes or bases: African American/Black, and male. Thus, we also find that Complainant also established typicality. Numerosity The numerosity prerequisite states that the potential class must be sufficiently numerous so that a consolidated complaint by the members of the class, or individual, separate complaints from members 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 Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980); Harriss v. Pan American World Airways, Inc. 74 F.R.D. 24 (N.D. Cal. 1977). We note that, although the Commission's requirements for an administrative class complaint are patterned on the Rule 23 requirements, Commission decisions in administrative class certification cases should be guided by the fact that an administrative complainant has not had access to pre-certification discovery in the same manner and to the same extent as a Rule 23 plaintiff. See Jones v. U.S. Postal Service, EEOC Appeal No. 0120101848 (May 25, 2012); Tschappat v. Dep't of Labor, EEOC Appeal No. 07A40074 (May 5, 2005), req. for recon. den'd, EEOC Request No. 05A50938 (Sept. 15, 2005) (citing Moten, et al. v. Federal Energy Regulatory Commission, EEOC Request No. 05910504 (Dec. 30, 1991)). Moreover, the exact number of class members need not be shown prior to certification. Id. However, in the administrative process, as in the court process, the correct focus in determining whether a proposed class is sufficiently numerous for certification purposes is on the number of persons who possibly could have been affected by the Agency's allegedly discriminatory practices and who, thus, may assert claims. Id. In this case, the only document in the record that Complainant provided to describe the class is his July 5, 2013, request for his complaint to be processed as a class complaint. In this document, Complainant stated that the class is comprised of "Black Male Engineers serving as Quality Assurance Representatives in Construction Division Field Offices of South Atlantic Division, US Army Corps of Engineers." Complainant then stated that, in addition to himself, S1 discriminated against "other Black Males serving as Quality Assurance Representatives at the Gulf Coast Area Office in regards to training. The names of those Quality Assurance Representatives are [CW1] and [CW2]." The Agency contends that Complainant did not meet numerosity because the class was comprised of three individuals: Complainant, CW1, and CW2. On appeal, Complainant contends that numerosity should be calculated by the "hundreds of former and present Black American Male Engineers" instead of three engineers. After a review of the record, we find that the proposed class is properly defined as "African American, Black, Male Engineers serving as Quality Assurance Representatives in Construction Division Field Offices of South Atlantic Division, US Army Corps of Engineers, who were discriminated against when S1 denied their training from 2011 until July 2013." As such, we find that the wording of Complainant's articulation of the proposed class is reasonably interpreted as a class consisting of three people. Specifically, Complainant stated that S1 discriminated against other African-American males serving as Quality Assurance Representatives at the Gulf Coast Area Office, and identified those individuals as CW1 and CW2. Moreover, Complainant did not afford himself of the opportunity to submit the required brief to the AJ to explain that the class consisted of more individuals to whom S1 denied training. Additionally, Complainant did not request any information from the Agency during discovery that could have helped him establish the numerosity requirement. The record does not contain any evidence or allegations that would indicate that S1 denied training to individuals other than Complainant, CW1, and CW2. Consequently, we find that Complainant failed to establish numerosity. Adequacy of Representation "Adequacy of representation" simply means that the class agent has demonstrated that he, or a designated representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2)(iv). The class agent must show that he is qualified, experienced, and generally able to conduct proposed litigation. See Drummond v. Dep't of the Army, EEOC Appeal No. 01940520 (Aug. 29, 1994) (citing Martin v. Middendorf, 420 F. Supp. 779 (D.D.C. 1976). In this case, Complainant, who is not an attorney, has not retained counsel. Given the complex nature of EEO class litigation, Complainant has not demonstrated that he possesses the skills, experience, time, and resources necessary to represent the interests of the class, nor has he identified a qualified attorney who has indicated a willingness to act as a legal representative for the class. The Commission has generally held that a non-attorney Complainant who does not possess the necessary experience, knowledge, or skills to represent a class is not an adequate representative. See Anderson, et al, v. Dep't of Defense, EEOC Appeal No. 01A41492 (Oct. 18, 2005) (class certification was denied where the class agent did not possess the necessary experience, knowledge, or skills to represent the class, and she did not obtain experienced counsel to represent the class); Wirkler v. Dep't of Defense Dependents Schools, EEOC Appeal No. 01881849 (Aug. 16, 1988); Woods v. Dep't of Housing and Urban Development, EEOC Appeal No. 01961033 (Feb. 13, 1998). We note that, if Complainant had established all of the other requirements for a class certification, we could have afforded Complainant another opportunity to obtain adequate representation. However, since Complainant did not establish numerosity, this is not necessary. In summary, the putative class does not satisfy the prerequisites to certify a class complaint. Accordingly, the Commission AFFIRMS the Agency's final order with respect to class certification. The Individual Complaint Now, we address Complainant's2 individual complaint. On appeal, Complainant contends that the Agency did not notify him with a "form letter" that he had the option to request a hearing before an AJ or a final decision by the Agency. The record reveals that, in a letter dated November 21, 2013, the Agency notified Complainant that the Agency would "resume the processing" of his complaint; the investigation of his individual complaint had been completed; and he had 30 calendar days from the receipt of its notice to request either a hearing with an AJ or a final agency decision. The record further indicates that someone at Complainant's address of record signed for the notice. When a certified-mail receipt has been signed by an unidentified individual at the Complainant's address on a date certain to indicate delivery of a document, there is a presumption of constructive receipt of the document by the Complainant on that date. See Fontanella v. General Services Administration, EEOC Request No. 05940131 (Apr. 10, 1995). A complainant may rebut this presumption by demonstrating that the individual who signed for the document was not a family or household member of suitable age or discretion to do so. See id; Baunchand v. U.S. Postal Serv., EEOC Request No. 05920389 (May 29, 1992). In this case, Complainant does not maintain that the individual who signed for the notice was not a family or household member of suitable age or discretion. As such, we find that Complainant received constructive notice of his right to request a hearing. When Complainant failed to respond to the notice, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Under these circumstances, we decline to overturn the Agency's issuance of a final decision.3 Regarding the merits of Complainant's individual complaint, in order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). In this case, for purposes of analysis, we assume arguendo that Complainant established a prima facie case of discrimination. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory explanations for its actions. Specifically, regarding the denial of training, the Area Engineer stated that he sent a notice asking employees to identify training they desired to obtain for the next fiscal year. He stated that, when Complainant responded, he told him that he wanted to offer Complainant something that would help the team pass fire alarm inspection tests and help the overall team performance. The Area Engineer further stated that he also offered Complainant the possibility of taking a team-building course, but Complainant responded that he wanted BICSI training. The Area Engineer stated that he told Complainant that he did not consider BICSI training the most relevant training that the Agency should support at that time because management wanted to focus on passing fire alarm training, and there are other certification courses for performing fire alarm inspections. He stated that no other employees requested to attend BICSI training, and no employees attended such training in 2011 or 2012. The Area Engineer stated that, although Complainant maintained that BICSI training would assist him, he disagreed because it was for the "designer side," whereas management wanted to focus on installation. He stated that BICSI training is not a requirement for Complainant to perform his job. The Area Engineer further stated that, when he arrived at the office in 2010, Complainant was the only employee that he supervised who was allowed to take the BICSI course, and he had already been approved to attend the course in March 2010, so he did not interfere at that time. The Area Engineer stated that he denied Complainant BICSI training the next year because he became more knowledgeable about office requirements. He also stated that several instructors came to the office for several courses so that all employees could receive training, but Complainant chose not to attend. The Chief of the Contract Support Branch (Chief 1) stated that he observed Area Engineer state that he was not going to pay for training for Complainant so that he could add more certification initials or acronyms under his signature. Additionally, the Chief of Construction (Chief 2) stated that, after researching the matter, management concluded that the organization did not need a BICSI/RCDD-certified individual to perform the duties and responsibility of the quality assurance inspection. He stated that the BICSI training is heavily focused on design activities, which the office does not pursue as part of its mission. Regarding the comments on Complainant's evaluation, Chief 2 stated that he was Complainant's senior rater for the period ending October 31, 2012. Chief 2 further stated that he made the comment about teamwork on Complainant's 2012 evaluation because he believes that every employee can improve some aspect of performance, and he thought his comment reflected an area in which Complainant could improve. He further stated that the comment was not intended to be derogatory; it was meant to be an indicator of what he thought Complainant could work on to become a better employee. In an attempt to prove pretext, Complainant maintains that BISCI courses support inspection and are not only design courses. However, we find it reasonable that the Agency would want employees to seek training that was more focused on inspection, especially considering budgetary constraints. At any rate, Complainant failed to show that any similarly-situated employees outside his protected classes were treated more favorably than he was treated in this case. To the extent Complainant compares himself to C1, we find that C1 was not similarly situated to Complainant because he worked in a different office and had a different supervisor than Complainant. In fact, no other employees supervised by the Area Engineer received BISCI training in 2011 and 2012. We find that Complainant failed to prove that the Agency's explanations for its actions are pretext for unlawful discrimination. Consequently, we AFFIRM the Agency's final decision because the Agency properly found no discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's November 19, 2013, final order adopting the AJ's decision that Complainant did not meet the requirements of class certification. Additionally, we AFFIRM the Agency's November 12, 1014, final decision finding that Complainant did not prove that he was subjected to unlawful discrimination for the reasons set forth in this decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 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 (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 (Z0610) 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's signature Carlton M. Hadden, Director Office of Federal Operations ____5/18/18______________ 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 Because the Class Agent's class complaint is not certified as a class, we refer to him as "Complainant." 3 The Agency investigated and issued a final decision on Complainant's individual complaint before the resolution of the appeal of the AJ's denial of class certification of his class complaint. In this circumstance, it would have been more appropriate to hold the processing of Complainant's individual complaint in abeyance until the final resolution of the class complaint. However, in the interest of administrative efficiency, we will address the merits of Complainant's individual complaint herein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140848 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 11 0120140848 and 0120150803