Mark G. Levitoff, et al., Appellant, v. Edward Madigan, Secretary, Department of Agriculture, Agency. Appeal No. 01913685 Agency No. 910402 Hearing No. 370-91-X2272 March 17, 1992 DECISION INTRODUCTION On August 23, 1991, Mark G. Levitoff (hereinafter lead appellant), agent for the class, filed an appeal to the Equal Employment Opportunity Commission from the final decision of the Secretary, Department of Agriculture (hereinafter referred to as the agency), received on August 7, 1991, concerning his equal employment opportunity (EEO) class complaint which alleged discrimination based on sex (male) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. This appeal is accepted by the EEOC in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED Whether the agency properly rejected certain allegations and bases of lead appellant's class complaint because the allegations failed to meet the prerequisites of a class complaint as set forth in 29 C.F.R. 1613.601(b) and required by 29 C.F.R. 1613.604(b)(7). CONTENTIONS ON APPEAL Appellants filed an appeal statement in which they reiterated contentions raised below. The agency filed an appeal statement in which it contended that it accepted the issue that was specifically identified, but rejected vague allegations of discrimination based on general employment policies and practices. The agency contended that the delays and difficulties regarding the initial processing of the informal complaint were due more to the class's inability to articulate precise allegations, than to the agency's intransigence. BACKGROUND On November 10, 1988, a Region 5 Forest Service employee contacted an EEO Counselor to initiate a class complaint of sex discrimination on behalf of certain male employees within the Region. After the Region 5 EEO Office requested that an informal complaint be initiated, the lead agent submitted a written class EEO complaint to the agency on January 6, 1989. The agency treated this complaint as an "informal complaint" and assigned an EEO Counselor effective March 28, 1989, to attempt informal resolution. The record indicates that at some point during the early counseling stages, the class representatives met with the EEO Counselor and with agency officials, and an attempt at resolution was unsuccessful. Thereupon, the EEO Counselor closed the complaint file without issuing a Notice of Final Interview, despite the class's protests. On appeal to the Commission, we found that the agency improperly attempted to restrain the class from filing a formal complaint and remanded the matter for further processing. Levitoff v. Dep't of Agriculture, EEOC Appeal No 01902499 (August 30, 1990), request to reopen denied, EEOC Request No. 05910004 (March 12, 1991).1 On remand, a formal complaint was filed in the name of the lead appellant and on behalf of "all those similarly situated male employees of the Forest Service, Department of Agriculture, and applicants for employment thereto," on the bases of sex, race, color, national origin, religion, age, handicap, marital status, sexual harassment and reprisal. The agency accepted the complaint and forwarded it to an EEOC Administrative Judge (AJ) for a determination regarding class certification, pursuant to 29 C.F.R. 1613.604. The AJ issued a "recommendation as to acceptance or rejection of class complaint" finding that only one issue should be accepted as a class allegation, and that the remaining issues should be rejected. The one issue accepted was the allegation concerning the Region 5 practice of allegedly cancelling vacancy announcements when women do not show up on the certificate and readvertising under the focused placement and/or accelerated development program. The AJ recommended that this issue be accepted only on the bases of sex and reprisal. The agency issued a second FAD accepting this issue, but on the basis of sex (male) only. Reprisal was rejected as a basis on the grounds that the facts involved in that basis are generally too unique to individuals to support a class due to failure of commonality and typicality. All other allegations were rejected for failure to state a claim, on the ground that the lead appellant failed to show that these allegations affected him personally.2 It is from this second FAD that appellant appeals.34 The formal complaint charged the agency with perpetrating a "continuing integrated and pervasive pattern and practice ... (of) denying employment opportunities to males," and designated sub-representatives for 13 specific allegations related to the general allegation. All of the members of the class, the complaint claimed, sought and were denied promotions,5 employment, non-competitive conversions and training opportunities in the agency's Region 5.6 The complaint alleged that the agency engaged in employment practices emanating from a common plan or scheme uniformly applicable to all male applicants for positions, employment, placement and training. According to the RD, lead appellant is a GS-6 Forestry Technician who is guaranteed 32 weeks of work per year, but must be laid off each year. Some time before September 9, 1988, lead appellant applied for a Supervisory Forestry Technician (GS-7) position. The announcement was cancelled and the position reannounced. The lead appellant reapplied, but received notice around December 5, 1988, that he had not been selected. The RD found that marital status is not an appropriate purview for EEO complaints. It further found that nothing in the complaint or the record indicated that any employee in the class was complaining of discrimination on the bases of race, color, religion, national origin, handicap, sexual harassment or age. Consequently, the RD limited the complaint to discrimination on the bases of sex and reprisal. The RD then looked at the issues involved in the complaint, and concluded that the only issue indicating possible frequent instances of sex discrimination was the recruitment for and the filling of vacancies. Specifically excluded, however, was the question of sex discrimination with respect to hiring, as lead appellant failed to demonstrate that the hiring issue shares common questions of fact with the allegation of discrimination against employees. The RD found that lead appellant's allegation, as limited by the RD (i.e., the promotion allegation), met the typicality, numerosity and adequacy requirements for a class complaint. Specifically, the RD found that there were over 3000 male employees in Region 5 of the Forest Service, and that a number of them had already submitted statements supporting this particular claim of sex discrimination. The FAD rejected the purview of reprisal as generally inappropriate for a class complaint, but accepted the RD's remaining findings without modification. Our review of the record indicates that several statements from Region 5 employees allege sex discrimination in the areas of training, non-competitive conversions, and hiring, although there is no evidence that any alleged disparate treatment occurred with sufficient frequency to render adjudication of individual complaints impractical. ANALYSIS AND FINDINGS The complaint attacks specific agency policies alleged to favor one sex over the other, based on the agency's need to implement a Consent Decree. As such, we find that the allegations of sex discrimination with regard to hiring, promotions, training, and noncompetitive conversions constitute allegations of across-the-board discrimination. The United States Supreme Court has held that an allegation of across-the-board discrimination is not, by itself, sufficient to justify its acceptance as a class claim. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982). Rather, an individual litigant seeking to maintain a class action must meet the "prerequisites of numerosity, commonality, typicality, and adequacy of representation" specified in EEOC Regulations 29 C.F.R. 1613.601 et seq. This regulation, which is an adaptation of Rule 23(a) of the Federal Rules of Civil Procedure, provides that the agency may reject a class complaint if any one of these prerequisites is not met. 29 C.F.R. 1613.604(b). This position is reflected in court decisions. Falcon, supra. See also, Martin, et al., v. United States Postal Service, EEOC Appeal No. 01911662 (August 28, 1991). Moreover lead appellant, as the party seeking certification of the class, bears the burden of proof in establishing that the proposed class meets the numerosity, typicality, commonality and adequacy of representation criteria. Smith v. Merchants & Farmers Bank, 574 F.2d 982, 983 (8th Cir. 1978). REJECTED BASES We agree with the AJ that neither Title VII nor EEOC regulations permit the consideration of allegations of marital-status discrimination in the guise of an EEO complaint. Furthermore, neither lead appellant nor any of the class members provided any evidence that they were discriminated against as a class based on race, color, national origin, religion, age, handicap, or sexual harassment. We note several references to the "White male complaint," but there is no evidence nor any claim that only non-White females were preferred to White males. Additionally, while some exhibits in the complaint refer to announcements being cancelled for lack of diversity where neither females nor minorities applied, we find this evidence is insufficient to require that the promotion allegation be considered under any basis other than sex. With regard to the basis of reprisal, we agree with the FAD's conclusion that, absent a showing of specific reprisal actions taken against a group of men for challenging agency policies, reprisal does not constitute an appropriate basis for a class complaint. The courts have held that reprisal allegations can be so individualized that a plaintiff cannot establish the required nexus with any class. See e.g., Strong v. Arkansas Blue Cross-Blue Shield Inc., 87 FRD 496, 511 (E.D. Ark. 1980). If the lead appellant or any of the class members contends (as lead appellant does in this matter) that he was not selected after having complained of a previous nonselection, then he may file an individual complaint of reprisal. Absent a showing that such reprisal was routinely visited upon class members, however, he may not append this basis to this class complaint. COMMONALITY/TYPICALITY/ADEQUACY OF REPRESENTATION With respect to the prerequisites of commonality and typicality, the courts have held that factual differences among class members are superseded by the alleged operation of a pervasive discriminatory policy that operates "across the board." Reed v. Arlington Hotel, 476 F.2d 721 (8th Cir. 1973). However, the United States Supreme Court in Falcon criticized certification of cases of across the board discrimination without any evidentiary basis from which one could reasonably infer the operation of an overriding policy of discrimination. In Falcon, the Supreme Court stated: "Conceptually, there is a wide gap between (a) an individual's claim that he/she has been denied a promotional opportunity on discriminatory grounds, and his/her otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims." Since Falcon, while courts have not required complainants to prove the merits of their claims at the class certification stage, complainants have been required to provide more than bare allegations that they satisfy the requirements of Rule 23(a). Appellant must show some nexus with the alleged class. Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985). What is necessary is a specific showing of underlying facts which might raise an inference of a common question of pattern and practice through allegations of specific incidents of discrimination, supporting affidavits containing anecdotal testimony by other employees that there is a class of persons who was discriminated against in the same manner as the individual, evidence of a biased testing procedure, or evidence of entirely subjective decision-making and evaluation processes. Griffin v. Dugger, 823 F.2d 1476, 1487 (11th Cir. 1987); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986). Commonality is established when a common thread of discrimination confronts all members of a class. This requires a showing of some uniformity among the class members and the fact that the claims of class members involve common issues of fact. Typicality requires that the claims of the agent be typical of the claims of the class. 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 members by what happens with the agent's claims. Further, the Supreme Court has repeatedly held that a class representative must be part of the class and "possess the same interest and suffer the same injury" as the class members in order to establish commonality and typicality. Falcon, 457 U.S. at 156; East Texas Motor Freight System, Inv. v. Rodriguez, 431 U.S. 395, 403 (1977); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216 (1974). In the present case, the AJ determined that the commonality and typicality requirements were met for the promotion allegation, but not for the other allegations. Additionally, the AJ found that the lead appellant failed to establish a nexus between the alleged discrimination in hiring (outside applicants) and promoting (of current agency employees). We agree that lead appellant has not shown that he personally was denied a noncompetitive conversion or training opportunities. Nor was he a nonagency candidate for employment who was denied a position (although he was denied a promotion to permanent year-round employment). Appellant offered a series of "subclasses" for the allegations, each subclass headed by a complainant who alleged the particular harm relating to the relevant allegation.7 However, the AJ determined that such "subclasses" were not necessary, and considered the complaint as simply emanating from one general class, with the named lead appellant serving as agent for all of the allegations. We again agree with the AJ that, absent a showing that the agents for the "subclasses" represent an unmanageably large number of employees suffering the same disparate treatment, such "subclasses" will not be treated apart from the class headed by the lead agent. In short, lead appellant fails to show that his claims are typical of these subclasses. Nor has he shown that the membership of the subclasses is so numerous that it would be impractical to adjudicate the subclass claims individually. More specifically, we agree with the RD's finding that the lead appellant's complaint does not show why adjudication of an employee's complaint about the treatment of employees would require consideration of any common question concerning discrimination in hiring. The record shows that the lead appellant is arguing that a nexus exists between the agency's alleged refusal to hire outside males and its alleged reluctance to promote male employees. Both, it is claimed, stem from the agency's interpretations of the same Consent Decree. However, no reasons have been given as to why a separate class action on behalf of nonagency candidates could not be maintained. Indeed, lead appellant has not shown how many non-agency applicants have been affected by the Consent Decree, nor how lead appellant would adequately represent those applicants who do not currently work for the agency. Accordingly, we find that the class complaint fails to meet the typicality and commonality requirements with regard to the hiring, training and noncompetitive conversions of employees. Nor has lead appellant shown that he could adequately represent the class with respect to these issues. Additionally, there is little or no information relating to the class claims of sex discrimination with regard to performance appraisals, accommodation for handicaps, sexual harassment, discipline or reassignments. Moreover, while the record contains statements from two men who claim that they were given additional duties but denied recognition or additional pay, there is no indication that this practice was sufficiently widespread to meet the typicality criterion of a class complaint.8 Accordingly, we find that these allegations fail to meet the commonality and typicality requirements of 29 C.F.R. 1613.601(b)(2) and (3). NUMEROSITY The Commission notes 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. Several factors are used to determine whether a class is too numerous to make joinder practical such as the size of the proposed class, the ease of identifying class members and determining their addresses, as well as the geographic dispersion of the class. Although no specific number of class members is required, the courts are generally reluctant to certify classes with fewer than forty-five (45) class members. In such cases, factors other than numbers become increasingly important. In the present case, it is not apparent that the numerosity requirement has been met for any of the allegations at issue in this appeal. Lead appellant claims to represent all men in the Forest Service's Region 5 who were denied employment opportunities given to similarly situated women in accordance with the Consent Decree. As noted above, the AJ found that approximately 3,000 men were employed in Region 5, and that the practices complained of had been occurring over a course of years, the Consent Decree having become effective in 1981. However, after careful review of the evidence of record, we find that appellant has failed to provide any factual assertions in support of his conclusion that the number of employees who have been discriminated against on the basis of sex with respect to hiring, noncompetitive conversions, training, performance appraisals, denial of pay or recognition for extra work performed, accommodation for handicaps, sexual harassment, discipline or reassignment is so substantial that joinder (individual processing) would be impossible. Where the size of a proposed class is purely speculative, the numerosity requirements of Rule 23(a) and EEOC Regulation 29 C.F.R. 1613.604(b)(1) are not met. See Patterson v. General Motors Corp., 631 F.2d 476 (7th Cir. 1980). Therefore, in light of the appellant's apparent inability to identify the size of the proposed class, we concur with the agency, that the size of the class is purely speculative and class certification must be denied for these allegations. After carefully evaluating all the evidence in the record, we find that appellant has failed to meet the class complaint prerequisites of numerosity, commonality, and typicality for any of the allegations at issue in this appeal. CONCLUSION Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final agency decision rejecting the above-noted allegations of this class complaint. STATEMENT OF RIGHTS - ON APPEAL RIGHT TO REQUEST REOPENING (M0391) The Commission may, in its discretion, reopen and reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy; or 3. The decision is of such exceptional nature as to have effects beyond the actual case at hand. Requests to reopen, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or within twenty (20) calendar days of the date you receive a timely request to reopen filed by another party. Any argument in opposition to the request to reopen or cross request to reopen MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reopen. See 29 C.F.R. 1613.235. All requests and arguments must bear proof of postmark and 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 reopen shall be deemed filed on the date it is received by the Commission. RIGHT TO FILE A CIVIL ACTION (S0391) You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of the date that you receive this decision, unless within that time you decide to file a request to reopen. The limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is filed. 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. "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 (Z0391) 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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision. For the Commission: Dolores L. Rozzi Director Office of Federal Operations Footnotes 1 The Commission's decision rejecting the request to reopen states in pertinent part: The agency contends that it was not restraining appellant but only attempting to resolve the complaint informally and that appellant refused to cooperate in this endeavor. We strongly disagree. From the beginning of the agency's attempt to resolve appellant's complaint (begun in April 1989) the EEO Counselor's Report indicates that appellant cooperated in attempting to resolve this complaint.... However, beginning in September 1989, the agency admits that the settlement agreement became bogged down in bureaucratic review, and that a settlement offer substantially different from the one originally worked out between appellant and the agency was finally presented to appellant in February 1990, over a year after appellant first contacted an EEO Counselor.... It was only after all this took place and the class rejected the settlement offer that appellant requested permission to terminate EEO counseling and be given the right to file a formal complaint. We fail to see how appellant did not cooperate fully in attempting to resolve the complaint, especially given the fact that, in an attempt to resolve the claim informally, appellant waited over a year to file his formal complaint. 2 The agency issued a separate FAD to each class subagent, rejecting their class claim (except for the one noted above which was accepted), and stating the procedure by which each could obtain consideration of his individual (i.e., non-class) complaint. The agency has requested that the Commission follow this format, and issue 16 separate decisions. We consider that the entire class appealed an adverse FAD when the lead agent noted his appeal; we therefore decline to issue separate decisions for each class subagent. Accordingly, this decision will apply equally to all subagents, as well as to all members of the class, unless otherwise specifically stated. 3 The agency, in its most recent submission, has requested a clarification of the appeal numbers the Commission has assigned to the matter. Appeal No. 01913541 was consolidated with Appeal No. 01913685 (see letter closure dated October 11, 1991). Accordingly, the proper number for the instant appeal is 01913685. 4 However, appellant's individual complaint continues to be processed, according to this second FAD. 5 In this decision, both "promotion" and "nonselection" or "selection" will be used to refer to employment actions taken with respect to current agency employees. These terms are used interchangeably. "Hiring" will refer to the selection (or nonselection) of applicants not employed by the agency at the time of their application. 6 A number of these allegations, while presented as distinct from the initial promotion allegation, in reality correlate closely, and could be combined with the allegation of sex discrimination in promotions or selections. Other allegations in this group cited disparities in training opportunities, discipline, additional duties without additional pay. 7 See the discussion on page 4 supra regarding the specific allegations. 8 A number of these allegations, while presented as distinct from the initial promotion allegation, in reality correlate closely, and could be combined with the allegation of sex discrimination in promotions or selections. Other allegations in this group cited disparities in training opportunities, discipline, additional duties without additional pay. See discussion, supra, regarding these other allegations.