Casie S., et. al.1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency. Appeal No. 0120100672 Agency No. HUD-00117-2007Z Hearing No. 480-2007-00548X DECISION On November 30, 2009, Complainant, the putative Class Agent, filed an appeal from the Agency's November 4, 2009, final order concerning her equal employment opportunity (EEO) class complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(c). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) abused her discretion in declining to draw an adverse inference against the Agency for its response to Complainant's discovery request; and (2) whether the AJ erred in finding that Complainant's class complaint did not meet the prerequisites of numerosity, commonality, and typicality under 29 C.F.R. § 1614.204(a)(2). BACKGROUND At the time of events giving rise to this complaint, Complainant, as putative Class Agent, worked as a GS-14 Senior Environmental Officer at the Agency's Los Angeles Field Office in California. On or about April 12, 2007, Complainant was not selected for the position of Deputy Regional Director of the San Francisco Field Office. Complainant was on the Best Qualified List, but did not receive an interview. On June 26, 2007, Complainant filed a class complaint alleging that the Agency discriminated against Hispanic employees based on national origin by denying them promotion and other job-related opportunities for growth within the Agency. Complainant sought certification of a class comprised of "[c]urrent and retired HUD Hispanic employees who have been denied promotions, training, and/or details starting May 21, 2005 and continuing until the date a final determination is made on the class complaint claim." The matter was referred to an AJ to issue a decision on certification of a class. The AJ authorized the parties to engage in discovery on the matter of class certification. During discovery, Complainant requested that the Agency produce the promotion applications of Hispanic employees and the Best Qualified Lists for promotions for which a Hispanic employee had applied. The Agency responded that it did not have the requested documents categorized by national origin. In her motion for class certification, Complainant argued that the Agency's failure to produce the requested documents violated EEO Management Directive 715 (EEO MD-715) and warranted the drawing of an adverse inference against the Agency. In addition, Complainant argued that the class complaint met the prerequisites of numerosity, commonality, typicality, and adequacy of representation. Complainant submitted copies of her discovery requests, the Agency's discovery responses, affidavits from herself and 15 other Hispanic employees, and the resume of the law firm representing her in the class complaint. On September 30, 2009, the AJ issued a decision dismissing the class complaint for not meeting all of the prerequisites for certification. As an initial matter, the AJ declined to draw an adverse inference against the Agency. The AJ found that, contrary to Complainant's assertion, EEO MD-715 does not require the Agency to keep such records. Consequently, the AJ concluded that the Agency did not engage in any conduct warranting an adverse inference when it responded in discovery that it did not have the requested documents categorized by national origin. As for certification, the AJ determined that the class complaint met the prerequisite of adequacy of representation, but did not meet the prerequisites of numerosity, commonality, and typicality. Regarding numerosity, the AJ found that Complainant's identification of only 16 potential class members was insufficient, particularly because she had a 10-month discovery period to identify potential class members. Although Complainant had argued that the potential class size could be as large as all 595 Hispanic employees at the Agency, the AJ found that Complainant did not present any evidence to support her conjecture that every single Hispanic employee fell within the scope of the class. Regarding commonality and typicality, the AJ found that Complainant failed to identify a specific policy or practice that disparately impacted Hispanic employees. Although Complainant had argued that excessive subjective decision-making created common questions of fact, the AJ found that Complainant did not link this alleged unfettered subjective decision-making to any specific promotion policy or practice. In addition, the AJ found that the anecdotal evidence - affidavits from Complainant and 15 other potential class members - did not constitute "significant proof" of a common promotion policy or practice impacting Hispanic employees nationwide. The AJ found that the only common thread among the affiants was their allegation of discrimination based on Hispanic national origin. The AJ noted that the affiants were employees who occupied different salary grades, held different types of positions, and worked under different management officials throughout the Agency's 10 regions and 81 field offices. Regarding adequacy of representation, the AJ found that Complainant had no conflicts with the proposed class and that the attorney representative of the proposed class had significant experience litigating employment discrimination class complaints. On November 4, 2009, the Agency issued a final order implementing the AJ's decision. Complainant then filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in declining to draw an adverse inference against the Agency and in finding that the class complaint did not meet the prerequisites of numerosity, commonality, and typicality. Specifically, Complainant argues that EEO MD-715 requires the Agency to maintain "[t]he rates of selections for promotions, training opportunities and performance incentives by ... national origin" and that the Agency told her this information was not available when she requested it during discovery. In addition, Complainant argues that the class size could be as large as 595 employees because there are 595 Hispanic employees at the Agency and Hispanics are underrepresented at the Agency by four percent compared to the entire country's workforce. Further, Complainant argues that common questions of fact are created by: (a) the Agency's practice of discriminating against Hispanic employees due to "a negative systemic philosophy and management attitude towards Hispanic employees;" and (b) the Agency's subjective decision-making in promotion, training, and details. Moreover, Complainant argues that the Commission has previously certified class complaints involving subjective decision-making or common promotional policies and practices. In support of that argument, Complainant cites a number of Commission cases, discussed further infra.2 Finally, citing Turner v. Department of Justice, EEOC Appeal No. 0720060041 (July 19, 2007), Complainant argues that a class complaint can still meet the prerequisite of commonality even where, as is the case here, the employees work in different positions, under different supervisors, and in different locations. In response, the Agency requests that we affirm its final order dismissing Complainant's class complaint. Specifically, the Agency argues that MD-715 does not require the type of recordkeeping requested by Complainant. Moreover, the Agency argues that a class size of 16 members does not meet the prerequisite of numerosity and that Complainant offers no basis upon which to conclude that potentially all 595 Hispanic employees fall within the scope of the class. Finally, the Agency argues that the class complaint does not meet the prerequisites of commonality and typicality because Complainant fails to identify a discriminatory policy or practice other than the common thread of Hispanic national origin; Complainant's conclusory assertions of a subjective decision-making process fall short of the evidentiary threshold; and each of the 16 affidavits presents widely differing facts. ANALYSIS AND FINDINGS Adverse Inference If a party fails without good cause shown to respond fully and in timely fashion to a request made or approved by the AJ for documents, records, comparative data, statistics, or affidavits, and the information is solely in the control of one party, such failure may, in appropriate circumstances, cause the AJ to draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information. 29 C.F.R. § 1614.204(f)(2)(i). In her Second Request for Production of Documents, Complainant requested the following: For all internal and external vacancy announcements from which selections were made on or after May 21, 2005 please provide: 4. All applications for promotion by Hispanic applicants. 5. A copy of the Best Qualified List indicating the eventual Selectee for any vacancy announcement for which a Hispanic employee/potential employee applied. For any Best Qualified List submitted please include the ... national origin of each person listed. In its Response to Second Request for Production of Documents, the Agency stated, in pertinent part, the following: 4. [A]pplication materials do not reflect or otherwise indicate national origin ... of the applicant. As such, the Agency does not maintain records reflecting Hispanic employees who have applied for competitive promotions through vacancy announcements from which selections were made on or after May 21, 2005. 5. Best Qualified Lists do not reflect or otherwise indicate ... national origin. The Agency does not maintain records reflecting vacancy announcements for competitive promotions from which selections were made on or after May 21, 2005 for which Hispanic employees have applied. The AJ found that EEO MD-715 does not require the Agency to keep such records and declined to draw an adverse inference against the Agency. Upon review, we find that the AJ did not abuse her discretion by declining to draw an adverse inference against the Agency. Specifically, we agree with the AJ that EEO MD-715 does not require the Agency to keep promotion applications categorized by national origin or Best Qualified Lists categorized by national origin. In arguing that the Agency's conduct warranted an adverse inference, Complainant cited the following language from EEO MD-715: The initial snapshot conducted by the agency must include, but not necessarily be limited to, an evaluation of the following data relating to the agency's status as of the end of each fiscal year: .... [t]he rates of selections for promotions, training opportunities and performance incentives by ... national origin." EEO MD-715, at Part A, II (Oct. 1, 2003). The cited EEO MD-715 language pertains to the collection of aggregate, non-identifiable demographic data for promotions. Complainant, however, requested that the Agency provide demographic data broken out by individual applicants, such as promotion applications by Hispanic applicants and Best Qualified Lists annotated with each applicant's demographic information. We find that nothing in the EEO MD-715 language cited above requires the Agency to collect the specific information requested by Complainant. Class Complaint A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (1) the class is so numerous that a consolidated complaint of the members of the class is impractical; (2) there are questions of fact common to the class; (3) the claims of the agent of the class 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). An AJ may dismiss a class complaint if it does not meet all four prerequisites. See 29 C.F.R. § 1614.204(d)(2); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 8, III.A.1 (Nov. 9, 1999). The party seeking class certification bears the burden of proof. See Mastren v. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993). Numerosity Numerosity requires that the class be so numerous that a consolidated complaint of the class members is impractical. 29 C.F.R. § 1614.204(a)(2). While there is no minimum number required to form a class, and an exact number need not be established prior to certification, courts have traditionally been reluctant to certify classes with fewer than 30 members. See Mastren, EEOC Request No. 05930253. The Commission has held that the relevant factors to determine whether the numerosity prerequisite has been met are the size of the class, the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each member's claim. See Carter v. U.S. Postal Serv., EEOC Appeal No. 01A24926 (Nov. 14, 2003). Upon review, we find that the class complaint failed to meet the prerequisite of numerosity. Specifically, we find that Complainant did not provide sufficient evidence documenting an estimated number of class members greater than 16. Although Complainant argued that all 595 Hispanic employees were potential class members, Complainant did not present any evidence showing what portion of those 595 employees applied for and were denied promotions, training, or details during the relevant time period. Moreover, we find that a comparison between the percentage of Hispanic employees in the Agency's workforce and the percentage of Hispanic employees in the entire country's workforce is irrelevant because the class complaint does not concern hiring. Commonality and Typicality The purpose of the commonality and typicality requirements is to ensure that the class agent possesses the same interest and suffers the same injury as the members of the proposed class. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982). As a practical matter, the commonality and typicality requirements tend to merge. See id. at 157 n.13. Commonality requires that there be questions of fact common to the class. 29 C.F.R. § 1614.204(a)(2). The class agent must, therefore, establish some evidentiary basis from which one could reasonably infer the operation of an overriding policy or practice of discrimination. Belser v. Dep't of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001). 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, and evidence of specific adverse actions taken. Mastren, EEOC Request No. 05930253. Mere conclusory allegations, standing alone, do not show commonality. Id. Factors to consider in determining commonality include whether the practice at issue affects the whole class or only a few employees, the degree of local autonomy or 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. (citations omitted). Typicality requires that the claims of the class agent be typical of the claims of the class, so that the interests of the class members are fairly encompassed within the class agent's claim. See 29 C.F.R. § 1614.204(a)(2); Falcon, 457 U.S. at 156. Upon review, we find that the class complaint failed to meet the prerequisites of commonality and typicality. Complainant did not present sufficient evidence of a common policy or practice, or show that her claims are typical of Hispanic employees nationwide who were denied promotions, training, and details. Specifically, we find that Complainant failed to identify a specific discriminatory promotion policy or practice that had the effect of discriminating against a nationwide class of Hispanic employees. Complainant's conclusory allegations about a "practice of discriminating against Hispanic employees" and "a negative systemic philosophy and management attitude towards Hispanic employees" are insufficient to establish commonality. In addition, we find that Complainant presented no evidence from which one could reasonably infer the operation of an overriding policy or practice of discrimination against Hispanic employees nationwide. The 16 affidavits in the record are from employees spanning five different salary grades, holding 15 different positions, working in offices in 13 different cities throughout the country, and alleging denials of various promotions, training, and details by different decision-makers. Moreover, we find that the instant class complaint can be distinguished from the cases Complainant cited on appeal. The cited cases involved class complaints that alleged a written policy or otherwise centralized practice granting discretion to management officials. See Taylor, EEOC Appeal No. 07A50060 (alleging that a subjective selection process and word-of-mouth hiring existed at a facility); Lewis, EEOC Appeal No. 01A40442 (alleging that specific written policies gave the local employing agency too much subjectivity); Madrid, EEOC Appeal No. 01981636 (alleging that a discriminatory promotion practice existed at a single facility); Basu, EEOC Appeal No. 01A10660 (alleging that an affirmative action program was discriminatory); Howard, EEOC Appeal No. 01956455 (alleging that a common group of supervisors in one metropolitan area exercised total or near total discretion in a discriminatory fashion); Moten, EEOC Request No. 05960233 (alleging that an overarching merit promotion policy emanated from a central office); Davis, EEOC Appeal No. 01930457 (alleging that the supervisory workforce acted in an unchecked and unfettered manner without regard for the regulations). In contrast, Complainant did not allege a specific written policy or centralized practice which affected a nationwide class of Hispanic employees. Finally, we note that Complainant cited Turner, EEOC Appeal No. 0720060041, for the proposition that a class complaint can still meet the prerequisite of commonality even when employees work in different positions, under different supervisors, and in different locations. In Turner, EEOC Appeal No. 0720060041, the Commission stated that the mere fact that employees hold different positions and work in different facilities does not automatically defeat commonality if there is sufficient evidence of a common policy or practice. Here, as discussed above, Complainant failed to present such evidence of a common policy or practice. Adequacy of Representation Adequacy of representation requires that the class agent, or her representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(d)(2). To satisfy this prerequisite, the agent or representative must possess the skills, experience, time, and resources necessary to conduct the litigation. See Belser, EEOC Appeal No. 01A05565. Upon review, we find that the class complaint met the prerequisite of adequacy of representation. The record reflects that the law firm representing Complainant has over 25 years of experience practicing in the area of employment law and has litigated over 20 class actions or group grievances. Individual Complaint EEOC Regulation 29 C.F.R. § 1614.204(d)(7) provides that a dismissal of a class complaint shall inform the agent either that the complaint is being filed on that date as an individual complaint of discrimination and will be processed under subpart A or that the complaint is also dismissed as an individual complaint in accordance with § 1614.107. Here, we note that the Agency's final order advised Complainant that her individual complaint would be processed with the formal filing date of September 30, 2009. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's order denying certification of the class complaint. We REMAND ComplainantClass Agent's individual complaint to the Agency for further processing, as specified in the Order below. ORDER To the extent it has not already done so, the Agency is directed to process Complainant's individual complaint in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision is issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision is issued, unless the matter is otherwise resolved prior to that time. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) calendar days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations _5/18/18_________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The cases cited by Complainant include Taylor v. Social Security Admin., EEOC Appeal No. 07A50060 (May 5, 2006); Lewis v. Dep't of Transp., EEOC Appeal No. 01A40442 (Sept. 28, 2005); Madrid v. Dep't of the Army, EEOC Appeal No. 01981636 (July 17, 2001); Basu v. Dep't of Agric., EEOC Appeal No. 01A10660 (June 27, 2001); Howard v. Dep't of Commerce, EEOC Appeal No. 01956455 (June 4, 1997); Davis v. Dep't of Labor, EEOC Appeal No. 01930457 (Sept. 10, 1993); and Moten v. Federal Energy Regulatory Comm'n, EEOC Request No. 05960233 (Apr. 8, 1997). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120100672 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 10 0120100672