Glenn D. Ferren, et al. v. Department of the Interior 01A03959 July 10, 2002 . Glenn D. Ferren, et al., Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency. Appeal No. 01A03959 Hearing No. 320-AO-8196X DECISION Complainant, as a class agent, filed a timely appeal with this Commission from a final agency action dated April 19, 2000, concerning his class complaint of unlawful 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant filed a formal class complaint, dated October 18, 1999, alleging that management in the agency's Montana State Office discriminated against male employees forty years and older in the agency's Montana Dakotas field offices regarding details and directed reassignments. In his formal class complaint, complainant identifies ten instances of alleged discriminatory directed reassignments of males over the age of forty during the period of 1989 - 1999. Complainant states that the list he provided is not all-inclusive and he notes that the practice seems to have occurred more frequently within the past five years. Complainant alleges that the agency's decisions regarding the detail and the directed reassignments are centralized in the Montana State Office and involve details and reassignments of employees in the various field offices. Complainant states that the process is engineered through the use of biased and fraudulent reporting by “review teams” to produce a report to validate the removal of an employee from their duty station. Complainant alleges that following the production of the report, an option is presented to the employee either to move to another office or become involuntarily separated. Pursuant to EEOC Regulations, the class complaint was referred to an EEOC Administrative Judge (AJ) to determine whether the class should be certified or dismissed. On March 27, 2000, the AJ issued a decision finding that the class should not be certified. In his decision, the AJ found that the class failed to meet the requirements of numerosity, commonality, typicality, and adequacy of representation as set forth in 29 C.F.R. § 1614.204(a)(2). With regard to numerosity, the AJ noted that the class agent identified only ten instances of alleged discriminatory reassignments of males over the age of forty for the period of 1989 - 1999. The AJ stated that despite the class agent's allegation that the class consists of over 400 employees, this assertion is not supported by the facts. With regard to commonality, the AJ found that the complaint offers no more than a bare allegation that there are questions of fact and issues common to the class. With regard to typicality, the AJ found that the complaint lacks specificity and detail as to any policy or practice adversely affecting the entire group as a class. The AJ stated that the complaint identified no clear allegation that any specific claim of the class agent is typical of the claim of each member of the class. Specifically, the AJ stated that the instances identified are individual occurrences and the reasons for the reassignment differ in the individual cases. Finally, with regard to adequacy of representation, the AJ stated that although the class agent has designated a representative, he has failed to show that the designated representative would and could adequately represent and protect the interests of the putative class. The agency adopted the AJ's decision in its April 19, 2000 final action. The record indicates that the class agent made two requests for discovery during the counseling stage of his complaint. In his first inquiry dated April 13, 1999, the class agent asked for information regarding the numbers of details/directed reassignments by sex and age. In response, the agency stated that information regarding directed reassignments may have to be obtained manually and that with regard to details, the agency stated that this information may be more limited. In a second request dated August 10, 1999, the class agent acknowledged receiving some information concerning details for the period of December 1997 through April 1999, but he also noted that the information appeared to be inaccurate. Specifically, the class agent notes that his name and that of another employee are not listed on the information provided. Additionally, complainant requested a listing of how many details were voluntary versus directed, the ratio of men to women involved, whether the details occurred in conjunction with a personnel action, and the number of details converted to directed reassignments by sex and office location. In response the agency notified the class agent that he must “seek discovery.” The EEO Counselor's report contains a summary of witness interviews from five of the six potential class members named by the class agent. The record reveals that the interviews provided by these witnesses are lacking in information in that some of the interviews do not specify which positions or offices the alleged class members were removed from and detailed to. Furthermore, none of the interviews indicate which agency officials were responsible for making the reassignments in the individual cases. Additionally, the record reveals that the interviewees as a group identified ten additional people who were allegedly reassigned during the relevant period; however, the record does not contain statements or interviews from most of the additional people identified by the interviewees. The purpose of class action complaints 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 Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982) (citations omitted). Under EOC Regulations, a class complaint must allege that: (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 the prerequisites are not met. See Garcia v. Department of Justice, EEOC Request No. 05960870 (October 10, 1998). Our review of the AJ's conclusions leads us to conclude that additional information should have been produced before a decision regarding certification was reached. Under the procedures set forth in our regulations, the AJ may require either the complainant or the agency to submit additional information on the issue of certification. 29 C.F.R. § 1614.204(d)(1). In the present case, complainant contends that management in the agency's Montana State Office discriminated against male employees forty years and older in the agency's Montana Dakotas field offices regarding details and directed reassignments between 1989 - 1999. Such claims of “across the board” discrimination require evidence of some common policy or practice such as biased testing procedures, centralized decision-making, or a subjective decision-making procedure to justify class certification. See Falcon, 457 U.S. at 159, note 15; Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05960233 (April 8, 1997) (finding that evidence of centralized promotion policy was sufficient to justify certification of a class consisting of workers from more than one job group, at different facilities). Although complainant alleges that the details and directed reassignments was a common practice effectuated through the agency's Montana State Office, the record contains no evidence that a centralized decision-making authority effected these decision, or that the same policy was applied by numerous supervisors. The record discloses that complainant requested information regarding the number of details/directed reassignments by sex and age of the employees, which would have yielded information regarding the positions at issue and the source of the decision-making authority. There is no indication in the record that the agency provided a complete answer to the requested information. The AJ makes no mention of this request for information by complainant. The record does not indicate that the AJ requested any information from the agency about the number of details/directed reassignments by sex and age. Due to the absence in the record of fully developed evidence regarding the decision-making authority, the Commission cannot determine whether commonality and typicality exist. With regard to numerosity, we note that the class agent identified ten potential class members. However, as noted in the EEO Counselor's report, these potential class members also identified ten other potential class members who were not discussed in the AJ's decision. The Commission finds that once the agency provides the information requested by the class agent regarding the details/directed reassignments, the class could possibly include sufficient members to meet the numerosity requirement. Accordingly, we conclude that it was premature and improper for the AJ to dismiss the class complaint on this basis. We note that the exact number of class members need not be identified prior to certification. Howard v. Department of Commerce, EEOC Request No. 05970855. Concerning the issue of adequacy of representation, we find that there is inadequate information in the record concerning the adequacy of complainant's representative. For example, there is no evidence of the qualifications of the named representative. We note that the Commission has held that where the other certification requirements have been met, the AJ may conditionally certify the class for a reasonable period of time so that the class agent may secure adequate representation. EEO MD-110, 8-1; see Hines v. Department of the Air Force, EEOC Request No. 05940917 (January 29, 1996)(finding no error from decision to provide the class agent with an opportunity to obtain counsel). In the instant matter, we note that the class agent lists no representative on appeal. Therefore, we find that if the AJ finds on remand that the class meets all certification requirements apart from the adequacy of the representative, then the AJ should conditionally certify the class for a reasonable period of time so that the class agent may secure adequate representation. Accordingly, the agency decision is VACATED and the class complaint is REMANDED to the agency for further processing pursuant to the Order herein. ORDER The agency shall: (1) Provide information to the class agent concerning the number of details and directed reassignments of persons reassigned from field offices in the Montana Dakotas to the Montana State Office during the relevant time period. This information must identify the sex and age of those detailed and/or directly reassigned. To the extent that it is available, the agency shall provide the reasons for the detail/directed reassignments of male employees over the age of forty, and whether their details/directed reassignments were affected by a centralized authority within the facility. Within sixty (60) calendar days of the date this decision becomes final, the agency must forward the entire record, including all information collected in this supplemental investigation, to the appropriate EEOC District Office. In its letter of transmittal, the agency shall request that an Administrative Judge be assigned to determine whether the class should be certified for further processing pursuant to 29 C.F.R. § 1614.204. Additionally, the agency shall provide the Compliance Officer referenced herein with a copy of its transmittal notice as referenced in provision 3 of this Order. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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 (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 (R0900) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations July 10, 2002 __________________ Date