Complainant, et. al., v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0720110008 Hearing No. 541-2008-00255X Agency No. P-2004-0296, P-2000-0138 DECISION Concurrent with its November 16, 2010 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") arguing that the Commission should affirm its rejection of EEOC's Administrative Judge's (AJ) decision to certify a class raising claims under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge properly certified the proposed class under the requirements of 29 C.F.R. § 1614.204. BACKGROUND The record reveals that Complainant/Class Agent (hereinafter referred to as "Complainant") worked as a Correctional Counselor, from 1990 until his retirement in 2008, at the Agency's Federal Correctional Institute in Florence, Colorado. Turner I - Agency No. P-2000-0138 On March 26, 1999, Complainant first contacted an EEO Counselor and alleged that since 1994, there has been "continuous retaliation against African American staff within the Bureau of Prisons in the form of denied promotions, transfers, and reassignments." On May 28, 1999, Complainant filed a class complaint on behalf of African American employees, asserting claims of retaliation and race discrimination, including the retaliatory failure to promote, harassment and discipline. This complaint has been identified as Agency No. P-2000-0138. In the complaint, Complainant attempted to certify a class of African American Agency employees throughout the United States, who have engaged in prior EEO activity. On December 5, 2000, the Equal Employment Opportunity Commission Administrative Judge (AJ) assigned to the matter determined that the case was not appropriate for class certification because Complainant failed to identify any class members, other than himself, who were allegedly denied transfers or promotions due to their prior EEO activity or race. The AJ found the complaint consisted of simply bare allegations, without any supporting documentation. On January 4, 2001, the Agency issued its final order adopting the AJ's decision. Thereafter, the Agency began processing Complainant's individual complaint under that same Agency Number. In August 2004, Complainant attempted to amend Agency No. P-2000-0138, pursuant to 29 C.F.R. § 1614.204(b), to raise his class claims, but the Agency denied his request to do so. Turner II - Agency No. P-2004-0296 On August 11, 2004, Complainant again sought EEO counseling and alleged that he had been subjected to reprisal when he was "black balled and was passed up for jobs that he felt he should have received. Promotions and transfers, both on more than one occasion." Complainant advised the Agency that the complaint had class implications. As to timeliness, he stated that the discrimination was: "[o]ngoing and did not have a discriminatory single event to report, but said it was a continuation of reprisal." He also cited prior EEO complaints that he filed in 1994 and 1999. On September 22, 2004 Complainant filed a formal class complaint alleging that since 1994, the Agency engaged in a pattern or practice of retaliating against employees who engaged in EEO activity, including initiation of investigations, refusal to transfer, failure to promote, disparate treatment in the terms and conditions of employment, surveillance, and harassment. The Agency docketed this complaint as Agency No. P-2004-0296. The complaint was sent to an AJ for determining whether the class should be certified pursuant to 29 C.F.R. § 1614.204(d). Meanwhile, Complainant was awaiting a hearing before an AJ on his individual complaint, Agency No. P-2000-0138. On October 24, 2004, the same AJ received Agency No. P-2004-0296 for processing as a class complaint. On December 30, 2004, the AJ subsumed Agency No. P-2000-0138 into P-2004-0296, which was now the class retaliation complaint.1 The AJ ceased processing the individual retaliation complaint in P-2000-0138 and continued processing the class complaint. On February 15, 2005, Complainant again contacted an EEO counselor and alleged retaliatory harassment due to the agency's use of the investigatory process. He also claimed he was issued a Letter of Suspension and requested that these harassment claims be added to his class complaint. A formal complaint followed on March 14, 2005, and was assigned Agency No. P-2005-0128. Therein, he alleged reprisal when he was suspended, denied sick leave and harassed when he was subjected to investigations. Thereafter, Agency No. P-2005-0128 was also subsumed into the class complaint (Agency No. P-2004-0296). On December 2, 2005, the AJ assigned to the class complaint issued a decision granting class certification, and defined the class as: All Agency employees and former employees who engaged in protected EEO activity and subsequently were subjected to retaliation, including initiation of investigations and surveillance, denial of transfer requests, failure to promote, discipline, disparate treatment in the terms and conditions of employment, and harassment, from 1994 to the present. In that decision, the AJ denied the Agency's request that the AJ dismiss the complaint because it was the same complaint as the prior class, which was denied certification in 2000. The AJ disagreed because Turner II was filed on reprisal only, and Turner I was filed on race and reprisal. The AJ also found that Complainant's August 11, 2004 EEO contact was timely because on August 10, 2004, Complainant learned that management officials had instructed Complainant's co-worker to watch Complainant and report back. The AJ found that this type of monitoring had preceded the initiation of investigations into Complainant's conduct and had resulted in discipline in the past. Therefore, the AJ found that Complainant proved sufficient evidence of the existence of a pattern and practice claim which included the initiation of investigations, refusals to transfer, failure to promote, disparate treatment in the terms and conditions of employment, surveillance, and harassment. Since these claims alleged a pattern or practice of retaliation, National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002), was not applicable. Accordingly, the AJ found the class complaint was timely filed, and encompassed retaliatory adverse treatment of Bureau of Prisons employees from 1994 to the present. EEOC Appellate Decisions 0720060041 and 0520070847 The Agency rejected the AJ's decision certifying the class, and appealed to the Office of Federal Operations ("OFO"). On July 19, 2007, OFO affirmed the Agency's final decision, and denied class certification. OFO found Complainant failed to identify a common policy or practice of retaliation that applied to the class as a whole. See Turner v. Dept. of Justice (Bureau of Prisons), EEOC Appeal No. 0720060041 (July 19, 2007). Thereafter, Complainant filed a Request for Reconsideration and requested that the Commission certify a "redefined" class comprised only of employees who allege that they were denied promotional opportunities after engaging in protected activity or to remand the case to an EEOC Administrative Judge to allow complainant the opportunity to conduct discovery on this "redefined" class. See Turner v. Dept. of Justice, Request No. 0520070847 (September 18, 2007). The Commission denied his Request. Turner III - Agency Nos. P-2004-0296 and P-2005-0128 Although the record is not entirely clear as to what prompted this action, on March 19, 2008, the EEOC's Denver Hearings Unit ordered the Agency to produce the complaint file in response to a hearing request so that it could begin processing the individual complaints in P-2004-0296 and P-2005-0128. On March 31, 2008, however, the Agency provided a copy of the Report of Investigation to Complainant and notified him that because his complaint raised the issue of suspensions, the matter was now being treated as a mixed complaint. Accordingly, he would receive only a final decision from the agency, not a hearing from the EEOC.2 Despite the Agency's position, the EEOC's Denver Hearings Unit continued to process Complainant's individual complaints. On April 25, 2008, Complainant filed his "Notice of Intent to Pursue Class Complaint" with the AJ assigned to Agency Nos. P-2004-0296 and P-2005-0128. On May 13, 2008, the AJ issued an Acknowledgement Order for Class Certification, and Complainant thereafter asked that the following class be certified: All Agency employees nationwide from January 1, 1994 to the present who have been denied promotions based upon the Agency's policy or practice of retaliating against employees because they engaged in Title VII EEO activity. Discovery ensued. In June 2008, the Agency filed Motions to Dismiss based on untimely EEO contact, collateral estoppel and laches. The Agency advised that there was no timely promotion raised before an EEO Counselor. On September 29, 2010, the AJ granted the class' request to add new Class Agents. By Order dated September 30, 2010, the AJ rejected the Agency's Motion to Dismiss. As to timeliness, the AJ relied on the earlier rejection of the Agency's timeliness arguments in Turner II. See Turner, EEOC Appeal No. 0720060041, recon. denied, EEOC Request No. 0520070847 (September 18, 2007) (finding that untimely acts, if part of a pattern or practice claim, can be found timely if the pattern continues into filing period). The AJ further noted that even though the defined class had since been narrowed to promotions only, the AJ found no problem with the EEO contact date. On September 30, 2010, the AJ issued a decision granting class certification. In her decision, the AJ found Complainant established that common questions of fact and law existed between Complainant and the putative class members. Specifically, the AJ found that all GS-14 promotions and leadership positions are decided by a common group, the Executive Committee. The AJ found evidence which showed the individuals who comprise the Executive Committee have knowledge of the applicant's EEO activity. Furthermore, the retaliatory failure to promote was allegedly enforced by its "vouchering" practice, where selecting officials engage in informal discussions about applicants, and allegedly, prior EEO activity is discussed. The AJ described a culture of retaliation based on anecdotal comments contained in the class members' affidavits. For example, one putative class member alleged that a warden referred to the "GNC" club - the "Got Nothin Coming" club regarding EEO complainants. The AJ found further allegations in other prior EEO complaints which suggested that Wardens, EEO Officers and Regional Directors considered prior EEO activity when making selection decisions. The AJ also noted that Complainant's expert's testimony provided support for class certification. The expert concluded that individuals who filed EEO complaints were promoted at a significantly lower rate than those who did not. The AJ further noted that even when the promotion rate for all employees was at its lowest, 12%, the promotion for individuals who filed EEO complaints lagged significantly behind at 3%. The AJ also found that there was considerable subjectivity in the decision making process, which, together with the anecdotal evidence, supported commonality and typicality. Essentially, the AJ found that there was a pattern or practice alleged of considering prior EEO activity when making promotional decisions. As for numerosity, the AJ found Complainant provided over 100 affidavits, which satisfied this certification requirement. Complainant identified almost 3,000 individuals nationwide, who could potentially be part of the class. Moreover, the AJ found Complainant's representatives, two attorneys, were adequate representatives of the class. The AJ certified the class claim as: whether agency employees from January 1, 1994 to the present have been denied promotions based upon the agency's policy or pattern and practice of retaliating against employees because they engaged in protected Title VII EEO activity. The scope of this case is nationwide. The AJ also ordered the Agency to identify all pending complaints that raise the same issue as identified in the class, and hold them in abeyance.3 Instant Appeal On November 16, 2010, the Agency issued a Final Order rejecting the AJ decision granting class certification and simultaneously filed the instant appeal. The Agency found that the AJ erred when she determined that commonality existed because the class members all work at different grades, job series and institutions. The Agency also determined that the AJ misread the testimony which purportedly found that the Executive Committee had knowledge of all EEO complaints filed when making its selection decisions. The Agency also noted that the anecdotal evidence could not support commonality because it was related to previously filed complaints where no findings of discrimination had been made, or the evidence was related to cases that had already been settled. The Agency maintained that selection decisions were decentralized, rather than organized around a centralized policy or practice. Moreover, it found that the affidavits did not contain specific facts related to non-selections, and were virtually identical to the affidavits submitted in the attempt to certify this class in previous years. The Agency also found no support for the AJ's decision that typicality existed because the affidavits did not contain sufficient information. Indeed, the Agency pointed out that no applicant flow data or relevant statistical information was included. Specifically, the Agency pointed out that while Complainant's expert stated that approximately 2,700 individuals failed to receive promotions after engaging in protected activity, there was no applicant flow data to determine whether these individuals were qualified for the positions, or even whether they actually applied for the positions. The Agency also found several other procedural problems with the AJ's decision. In particular, the Agency asserts there is no evidence that Complainant was denied a promotion within 45 days from the date he contacted an EEO Counselor for his 2004 complaint. Rather, Complainant only indicated he had been subjected to "ongoing discrimination since 1994." The Agency also maintains that the class was barred due to the doctrine of collateral estoppel. ANALYSIS AND FINDINGS Dismissal Grounds under 29 C.F.R. § 1614.107 Failure to State a Claim The Agency asserts the instant class complaint should be dismissed because it fails to state a claim citing, among other things, to the doctrine of collateral estoppel. Complainant counters that the class is not barred by the doctrine of collateral estoppel because the present class is a differently defined class than the prior attempts at class certification. He also maintains that the Commission has already found that it was not erroneous to allow the class to change the defined parameters of the class. Complainant is correct that we have already expressed our disagreement with the Agency's fundamental argument that Complainant cannot seek to certify a different class by changing the class definition.4 We have also already held that the doctrine of collateral estoppel does not apply here because the prior certification decisions were not decisions on the merits of Complainant's claims. Turner EEOC Appeal No. 0720060041, citing to Powers v. Dep't of Transportation, EEOC Appeal No. 07A40067 (May 5, 2005) (remanding case for a reevaluation of the certification question because AJ improperly considered the merits of a class claim in making a certification decision); and Brady v. United States Postal Service, EEOC Appeal No. 01920136) (February 11, 1992) (noting that a class certification decision is not a decision on the merits of a case). Therefore, we reaffirm that the class complaint should not be dismissed on the basis of collateral estoppel. We also affirm the AJ's ruling rejecting the Agency's contention that the complaint should be dismissed as too vague. As noted by the AJ, the retaliation allegations have been supported by numerous individual EEO complaints, affidavits, and an expert. These claims can be proved or disproved on their merits. Therefore, we find the AJ did not err in her decision not to dismiss the complaint for vagueness. Timeliness In the instant case, when Complainant's original class claims were denied certification and his individual complaint was remanded for continued processing, he moved again for class certification, arguing that his individual complaint had class implications, albeit on narrower grounds. Complainant did this in two ways: (1) he contacted an EEO Counselor, which resulted in the docketing of Agency No. 2004-0296 and; (2) he contacted the AJ responsible for processing his individual complaint (Agency No. P-2000-0138), which was then subsumed within P-2004-0296 and processed as a class complaint. On appeal, the Agency argues that the Complainant's EEO contact was untimely because he failed to identity a non-selection which occurred within 45 days of August 11, 2004 (date of EEO counseling for class complaint P-2004-0296). It argues that the AJ in Turner III erroneously relied on the timeliness decision found by the AJ in Turner II. The AJ in Turner II found a timely incident of harassment due to the initiation of an investigation thus, determined complainant's EEO Counselor contact was timely. However, the class in Turner III, the instant class, is narrower and only includes promotions. Therefore, the Agency claims that the class, now limited only to promotions, lacks a timely incident of discrimination. In response, Complainant asserts that the Agency is estopped from arguing timeliness because the Commission has already rejected the Agency's timeliness arguments. See Turner, EEOC Decision No. 0720060014. Complainant asserts that the Agency prohibited him from amending his individual complaint (P-2000-0138) to raise class claims and thus, he was forced to file a new complaint, P-2004-0296. Accordingly, Complainant maintains the August 11, 2004 EEO contact was timely because he was inappropriately denied the amendment to his earlier filed EEO complaint. Moreover, in 2008, when Complainant again attempted to amend his individual complaint into a class complaint, the Agency refused his request to meet with an EEO Counselor. The Commission's regulations require that, as with an individual complaint, an employee who seeks to represent a class of employees must seek counseling and undergo pre-complaint processing in accordance with § 1614.105. 29 C.F.R. § 1614.204(b). The Agency forwards the complaint, along with a copy of the Counselor's report and any other information pertaining to timeliness or other relevant circumstances related to the complaint, to an EEOC Administrative Judge. See 29 CFR § 1614.204(d). The administrative judge may dismiss the complaint, or any portion, for any of the reasons listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2). 29 C.F.R. § 1614.204(d)(2). However, our regulations also provide for an exception to the mandatory counseling prerequisite that allows a complainant to move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in an individual complaint. 29 C.F.R. § 1614.204(b).5 See also, EEOC Management Directive 110 at Chapter 8 (August 5, 2015). If a complainant moves for class certification after completing the pre-complaint process contained in § 1614.105, no additional counseling is required. Instead, the Agency or the Administrative Judge, as appropriate, must advise the complainant of his/her rights and responsibilities as the Complainant. Id. The class complaint at issue here (Agency No. P-2004-0296) was created because the Agency refused to allow Complainant to amend his individual complaint (P-2000-0138) to add class allegations. As already noted above, in our 2007 appellate decision, we have already disagreed with the Agency's position that Complainant, under the circumstances in this case, cannot seek to certify a different class by changing the class definition. In essence, we have also already decided that the Agency improperly refused to allow Complainant to amend P-2000-0138 to add class claims.6 The Agency argues that amending the individual complaint would not relate back to the original date of timely EEO counseling. However, this issue has already been decided to the contrary in a similar class case. See Walker v. U.S. Postal Service, EEOC Appeal No. 0720060005 (2008)(Complainant timely moved to amend his individual complaint to include class claims once he learned of class implications and amendment relates back to initial EEO Counselor contact). Thus, the AJ correctly determined that, if Complainant had been allowed to amend P-2000-0138 to add his class claims, that amendment would have related back to 1999 when Complainant first sought EEO counseling on claims that included being denied promotions due to retaliatory animus. Accordingly, we affirm the AJ determination that Complainant has stated a timely class claim for retaliatory denial of promotions based on prior EEO activity. Class Certification Having rejected the Agency's procedural dismissal arguments, we now turn to the question of whether Complainant as the class agent has satisfied the prerequisites of numerosity, commonality, typicality and adequacy of representation that are necessary for class certification under 29 C.F.R. § 1614.204(a). The AJ found that Complainant met these elements and defined the class as: all Agency employees (nationwide), from January 1, 1994 to the present, who have been denied promotions based upon the Agency's policy or pattern and practice of retaliating against employees because they engaged in prior protected EEO activity. 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." Gen. Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982). Under EEOC regulations, a class complaint must allege that: (1) the class is so numerous that a consolidated complaint concerning the individual claims of its members is impractical; (2) there are questions of fact common to the class; (3) the class agent's claims are typical of the claims of the class; and (4) 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 AJ may reject a class complaint if any of the prerequisites are not met. 29 C.F.R. § 1614.204(d)(2). Commonality and Typicality In addressing a class complaint, it is important to resolve the requirements of commonality and typicality prior to addressing numerosity in order to "determine the appropriate parameters and the size of the membership of the resulting class." See Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05960233 (April 8, 1997) (citing Harris v. Pan Am. World Airways, 74 F.R.D. 24, 45 (N.D. Cal. 1977)). The purpose of the commonality and typicality requirements is to ensure that class agent possesses the same interests and suffered the same injury as the members of the proposed class. Falcon, 457 U.S. at 156-57. Often, the commonality and typicality prerequisites tend to merge and are very similar. Id. At 157. Commonality requires that there be questions of fact common to the class, that is, the same action or policy affected all members of the class. 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. Id.; Belser v. Department of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001) (citing Mastren v. U.S. Postal Service, EEOC Request No. 05930253 (Oct. 27, 1993)). Mere conclusory allegations, standing alone, do not show commonality. Garcia v. Department of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003) (citing Mastren, EEOC Request No. 05930253). Factors to consider in determining commonality include whether the practice at issue affects the whole class or only a few employees, the degree of centralized administration involved, and the uniformity of the membership of the class, in terms of the likelihood that the members' treatment will involve common questions of fact. Id. Typicality, on the other hand, requires that the claims or discriminatory bases alleged by the class agent be typical of the claims of the class, so that the interest of the putative class members are encompassed within the class agent's claims. Falcon at 156. A class agent must be part of the class she seeks to represent, and must "possess the same interest and suffer the same injuries" as class members. Id. at 160. The Agency, citing Walmart Stores, Inc. v. Dukes, 131 S.Ct, 2541, 180 L.Ed.2d. 374 (2011), argues Complainant has failed to demonstrate that the claims of the class members "depend upon a common contention" and that there is "some glue holding the alleged reasons" for the decisions together. Walmart involved a proposed class consisting of more than a million potential members involving many thousands of management decision-makers and the grant of unfettered discretion to those managers to bind the purported class together. By contrast, in the instant case, Complainant has identified a far smaller purported class of about 3,000. More importantly, the AJ determined that there were common questions of fact and law between Complainant and the proposed class members - that Complainant's claims and those of the proposed class members were linked by a common thread. Specifically, the AJ pointed to evidence that established that all GS-14 promotions and "leadership" positions at any grade were decided by a common group - the "Executive Committee," a relatively small group that exercised considerable subjectivity in their decision-making process. In addition, the next level of promotions was controlled by the regional directors, who were also part of the Executive Committee. The AJ found evidence which showed the individuals who comprised the Executive Committee had knowledge of the prior EEO activity of candidates for promotion. Furthermore, the AJ found that the class complaint alleged that the retaliatory failure to promote was enforced by the Agency's "vouchering" practice, where selecting officials engaged in informal discussions about applicants, and allegedly, prior EEO activity was discussed. The AJ also described an alleged culture of retaliation which existed based on anecdotal comments contained in the class members' affidavits. The AJ further noted that Complainant's expert's testimony provided support for class certification. The expert concluded that individuals who filed EEO complaints were promoted at a significantly lower rate than those who did not. The AJ further noted that even when the promotion rate for all employees was at its lowest at 12%, the promotion for individuals who filed EEO complaints lagged significantly behind at 3%. The AJ concluded that this combination of factors supported a finding of commonality and typicality. Essentially, the AJ found that there was a pattern or practice alleged of negatively considering prior EEO activity when making promotional decisions. After a review of the Agency's final order and brief on appeal, we find that the Agency has not demonstrated that the AJ's findings on commonality and typicality are erroneous. Complainant has alleged a sufficiently tailored class comprised of current and former Agency employees who were denied promotions because of prior protected EEO activity. Based on our independent review, we find no reversible error in the AJ's conclusion that the putative class meets these two prerequisites. Numerosity EEOC Regulation 29 C.F.R. § 1614.204(a)(2)(i) requires that a class be so numerous that a consolidated complaint of the members of the class is impractical. This regulation is patterned on Rule 23(a) of the Federal Rules of Civil Procedure. The Supreme Court has indicated that the numerosity requirement of Rule 23 imposes no absolute limit for the size of a class complaint, but rather, requires an examination of the facts of each case. Gen. Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). Thus, although courts are reluctant to certify classes with 30 or fewer members, there are no specific numerical cut-off points. See Harris v. Pan American World Airways, 74 F.R.D. 24 (N.D. Cal. 1977). In addition to number, other factors such as the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiffs claim, are relevant to the determination of whether the numerosity prerequisite of Rule 23 has been met. Zeklman v. J. Ray McDennott &. Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). 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 Moten, et al. v. Fed. 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. The AJ retains the authority to redefine a class, subdivide a class, or recommend dismissal of a class if it becomes apparent that there is no longer a basis to proceed with the class complaint as initially defined. Hines, et al. v. Department of the Air Force, EEOC Request No. 05940917 (Jan. 29, 1996). Upon review of the record, it is clear that the number of members of the purported class satisfies the requirement of numerosity and that the AJ's finding in this regard should be affirmed. The AJ found that Complainant provided over 100 affidavits, which satisfied this certification requirement. Complainant identified almost 3,000 individuals nationwide, who could potentially be part of the class. Adequacy of Representation The final requirement is that the Class Agent, or his representative, adequately represent the class. To satisfy this criterion, the agent or representative must demonstrate that he or she has sufficient legal training and experience to pursue the claim as a class action, and will fairly and adequately protect the interests of the class. Belser, supra; Woods v. Department of Housing and Urban Development, EEOC Appeal No. 01961033 (February 13, 1998). In this regard, it is necessary for the class agent, or the representative, to demonstrate sufficient ability to protect the interests of the class so that the claims of the class members do not fail for reasons other than their merits. We affirm the AJ's finding that Complainant's two attorneys possess the necessary experience in class actions, discrimination claims and the federal sector EEO process to satisfy the adequacy of representation requirement. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order rejecting the AJ's certification of the class complaint in Agency No. P-2004-0296, as amended. The class is defined as: all Agency employees (nationwide), from January 1, 1994 to the present, who have been denied promotions based upon the Agency's policy or pattern and practice of retaliating against employees because they engaged in protected EEO activity. The matter is REMANDED to the Agency for processing in accordance with the Order below. ORDER The Agency is ORDERED to perform the following: 1. Notify potential class members of the accepted class claim within fifteen (15) calendar days of the date this decision becomes final, in accordance with 29 C.F.R. § 1614.204(e). 2. Forward a copy of the class complaint file and a copy of the notice to the Hearings Unit of EEOC's Denver Field Office within thirty (30) calendar days of the date this decision becomes final. The Agency must request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with29 C.F.R. § 1614.204(f). 3. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 (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 (R0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations September 15, 2015 __________________ Date 1 Complainant's race allegation was held in abeyance pending the outcome of the class certification process. 2 On April 14, 2008, Complainant thereafter again contacted the Agency's EEO officer and again attempted to amend P-2004-0296 and P-2005-0128 to raise class issues, but the Agency refused him counseling, arguing that the matter had been referred for a final decision because it was a mixed complaint. 3 We take notice that many complaints have been subsumed within the class. However, due to the complex procedural history, the record is not clear as to how many have been released and processed as individual complaints, and how many are still held in abeyance. 4 See Turner, EEOC Appeal No. 0720060041 (OFO decision noted, "According to the Agency, Complainant cannot attempt to re-litigate the same claims simply by changing the definition of the proposed class. He cannot be allowed another opportunity to certify his proposed class after it was already denied certification. We disagree."). 5 "A complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in the individual complaint. If a complainant moves for class certification after completing the counseling process contained in §1614.105, no additional counseling is required....." 6 For this reason, we are also not persuaded by the Agency's argument that laches should apply here. We agree with the AJ's finding that Complainant has been repeatedly asserting in various forums and manners that he should have been allowed to amend P-2000-0138 to add class claims. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130468 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720110008