CURTIS HINES, JR., ET AL., APPELLANT v. SHEILA E. WIDNALL, SECRETARY DEPARTMENT OF THE AIR FORCE AGENCY Request No. 05940917 Appeal No. 01931776 Hearing No. 150-92-4088X Agency No. C-2376-89-0001 DECISION ON REQUEST FOR RECONSIDERATION INTRODUCTION On August 19, 1994, the agency, through its representative, initiated a request to the Equal Employment Opportunity Commission (EEOC or the Commission) to reopen and reconsider the decision in Curtis Hines, Jr., et al., v. Sheila Widnall, Secretary of the Air Force, EEOC Appeal No. 01931776 (July 7, 1994). EEOC Regulations provide that the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reconsideration submits a written statement or brief which tends to establish one or more of the following three criteria prescribed by 29 C.F.R. Section 1614.407(c): (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, regulation or material fact, or misapplication of established policy; or (3) The decision is of such exceptional nature as to have substantial precedential implications. For the reasons set forth herein, the agency's request is denied. ISSUE PRESENTED Whether the Commission's previous decision correctly reversed the agency's final decision and remanded this matter to the agency for processing in accordance with the Commission's order. BACKGROUND On February 8, 1989, Curtis Hines, the putative class agent, and two other employees of the agency (collectively appellants), timely contacted an EEO Counselor regarding individual complaints of discrimination. On March 28, 1989, appellant and the two other complainants notified the EEO Counselor that they were combining their complaints into a class complaint. They subsequently decided to file a group complaint, but after receiving the notice of final interview, on August 29, 1989, reversed themselves again and on September 11, 1989, filed a class complaint which was apparently treated as an informal class complaint. This complaint alleged race (Black) discrimination involving an "institutionalized practice of subordinating the qualifications of Black Americans" by taking measures to avoid filling positions with Blacks when Blacks were most qualified for those positions. The complainant cited, among other things, instances in January 1989, when the appellants were nonselected for positions (two GS-11 Supervisory Equipment Illustrator positions and a Systems Manager position) in the Graphics Shop at Eglin Air Force Base, and another instance when, in a meeting on August 29, 1989, the agency refused to remedy any of the foregoing nonselections. A formal class complaint was filed on December 20, 1989 and was referred to an EEOC Administrative Judge (AJ). While the matter was pending before the AJ, one of the complainants withdrew as agent and member of the class and appellant became the new agent of the class. The AJ subsequently determined that the complaint did not meet any of the prerequisites for acceptance as a class complaint set forth in 29 C.F.R. § 1614.204(a)(2) (numerosity, commonality, typicality, or adequacy of representation). Accordingly, the AJ recommended that the complaint be dismissed, noting his disagreement with the agency's contention that the class complaint was untimely and stated the same claim as one already decided by the agency. The agency then issued its FAD, which concurred in the AJ's reasons for dismissing the class complaint, but also found that the class complaint was untimely and stated the same claim as one previously decided. The FAD dismissed appellant's class complaint and forwarded it for processing as an individual complaint in accordance with 29 C.F.R. § 1614.204(d)(7). Appellant appealed the FAD to the Commission. The Commission reversed the final agency decision and remanded this matter back to the agency for further processing. In so doing, we found appellant's September 11, 1989 contact, wherein he first filed the class complaint, timely since the first actual counselor contact regarding the subject matter occurred timely (on February 8, 1989), even though the class aspects were the subject of counseling on or after the September 11th date. We also found that the class complaint simply "recast the non-selection allegations in the context of a class complaint [and] did not state the same claim already decided by the agency." Finally, the Commission found that the putative class met the following prerequisites of 1614.204(a)(2) for acceptance as a class: (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; (iv) The agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. First, we found that no exact number of class members need be established prior to certification, or acceptance in the Commission's process, but that "appellant identified approximately 80 individuals "who fell within the appellant's racial group from appellant's air base and its "tenant organizational fields."The Commission noted that these facilities are dispersed such that joinder of the putative class members would be impractical. Next, with respect to commonality and typicality, items (ii) and (iii) above, we found that appellant's claims and those of the putative class share common questions of fact and law and that appellant, with his own claim and a variety of others demonstrating the subordination of the qualifications of Blacks, "presented enough facts to raise an 'across-the-board' claim of class-wide racial discrimination in the agency's hiring, job assignment, and promotion practices at [the agency's air base] and its tenant air fields."In so finding, the Commission defined the class as follows: All Black applicants and employees at the agency's Eglin Air Force Base and its affiliate air fields, who, on or after January 1, 1987, were not selected, promoted, or assigned, or who otherwise were subjected to disparate treatment which resulted in their nonplacement into positions for which they were qualified as part of the agency's alleged practice of subordinating the qualifications of Blacks at these facilities. In reaching this conclusion, the Commission applied a lesser standard than that applied by the courts under Rule 23 of the Federal Rules of Civil Procedure, because class agents in the EEO process are without the benefit of the precertification discovery available to Rule 23 litigants. Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05910504 (Dec. 30, 1991); Mastren v, USPS, EEOC Request No. 05930253 (Oct. 27, 1993). With respect to the last prerequisite, adequacy of representation, appellant was without an attorney of record though the record indicated that appellant had made or was in the process of making efforts to obtain counsel. The Commission provided appellant an opportunity to obtain counsel or substitute another agent who could obtain counsel and ordered, in relevant part, that the instant class complaint be remanded for further processing in accordance with the Commission's class complaint regulations and commencing at Section 1614.204(e) (Notification to class members of the acceptance of the class complaint). The instant Request for Reopening and Reconsideration followed. ANALYSIS AND FINDINGS The agency, in its petition, argues that pursuant to 29 C.F.R. Section 1614.407(c)(2) and (3) our previous decision "'involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy' . . . [and it] is of such exceptional nature as to have substantial precedential implications." The agency's voluminous submission incorporates the agency's brief and a supplement submitted to the AJ who recommended against certification and the agency's brief and a supplement submitted on appeal. The agency, in large part, restates its position with respect to the issues raised below. Chief among the restatements is the agency's argument going to commonality and typicality, that our previous decision is a departure from precedent because it does not require that "complainants" demonstrate that they were "harmed by all of the personnel practices and policies brought within the purview of the complaint in order to sustain class certification."However, the agency raised several new points with regard to the composition of the putative class as defined in our previous decision. The agency states, among other things: (1) that class membership requires a prior finding of discrimination, (2) that the class should not contain supervisors as well as non-supervisors, (3) the class should not contain applicants as well as employees, (4) the class should not contain both Wage Grade and General Schedule employees, and (5) the class should not contain Appropriated Fund employees as well as Non-appropriated Fund employees. The agency's arguments reach the heart of our previous decision and the precedent upon which it is based. Evidence used by courts to determine whether individual and class claims meet commonality include statistical evidence, anecdotal testimony by other employees showing that there is a class of persons who were discriminated against in the same manner as the individuals and evidence of specific adverse actions alleged. Mastren v. USPS, at p.10 citing General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 159 n.15 (1982); Griffin v. Dugger, 823 F.2d 1476, 1487 (11th Cir. 1987); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557-58 (11th Cir. 1986). Our decision takes into account a class agent's limited access to precertification discovery. Our regulations covering the period after acceptance, however at 29 C.F.R. Section 1614.204(f) not only provide for discovery, but give the AJ discretion to "direct that an investigation of facts relevant to the complaint or any portion be conducted by an agency . . .." The AJ has the latitude to redefine a class, subdivide it or recommend dismissal if it is discovered that there is no longer a basis to proceed as a class complaint. Finally, the agency argues that adequacy of representation should have been determined at the time of certification citing what is essentially dicta in Fleming v. Baker, EEOC No. 01880058 (June 21, 1988), wherein appellant named no class members, produced no statistics and failed to meet any of the other criteria for acceptance as a class complaint. We find no error in providing the class agent the opportunity to find counsel. We note that the agent now has counsel and no objection has been made regarding her qualifications to handle this matter. CONCLUSION After a review of the agency's request for reconsideration, the previous decision, and the entire record, the Commission finds that the agency's request fails to meet the criteria of 29 C.F.R. Section 1614.407(c), and the request is hereby DENIED. EEOC Appeal No. 01931776 is hereby AFFIRMED and this matter is remanded for further processing in accordance with that decision and the order below. There is no further right of administrative appeal on a decision of the Commission on a Request for Reconsideration. ORDER The agency is ORDERED to continue processing the remanded class allegations in accordance with 29 C.F.R. § 1614.204(e)etseq. The agency shall acknowledge to the appellant that it has received the remanded allegations within thirty (30) calendar days of the date this decision becomes final. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. v 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.410. RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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. § 2000eetseq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: Frances M. Hart Executive Officer Executive Secretariat January 29, 1996