Valentin P.,1 et al., Complainant, v. Eric Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120113722 Hearing No. 560-2011-00065X Agency No. ARHQOSA10SEP04268 DECISION On July 29, 2011, Complainant filed an appeal from the Agency's June 23, 2011, final order denying certification of a class complaint filed by him as the proposed Class Agent, 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. § 1614.401(c). For the following reasons, the Commission REVERSES the Agency's decision to deny certification of the class complaint. ISSUES PRESENTED The issue presented before the Commission on appeal is whether the Agency's acceptance of the EEOC Administrative Judge's (AJ) recommendation to deny certification of the class complaint at issue was proper. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-2210-11, at the Agency's U.S. Army Human Resources Command (HRC) in St. Louis, Missouri. On October 26, 2010, Complainant filed a class complaint alleging discrimination against HRC employees on the bases of race (Black), sex (male), color (black), and reprisal for prior protected EEO activity when, on August 10, 2010, the Job Swap program was not offered to HRC employees, and they were not given the opportunity to accept a $25,000 Voluntary Separation Incentive Payout (VSIP) as employees of the Army Review Board Agency were. Per Commission regulations, this case was identified as a class complaint. See EEOC 29 C.F.R. § 1614.204. Therefore, the Agency forwarded the matter to the appropriate EEOC District Office and the case was assigned to an AJ. Id. The AJ in this case determined that the complaint did not meet the requirements for class certification. Specifically, she found that the class complaint did not meet the numerosity requirement because Complainant identified only two other members of the putative class, bringing the total number of class members to three. The AJ further found that Complainant was not represented by adequate counsel because he was represented by a Union Representative and there was no evidence this individual had experience representing class complainants. Finally, the AJ found that Complainant failed to meet his burden of showing that the class complaint met the requirements for certification. Her findings were issued in a Recommended Decision released on May 10, 2011. The Agency accepted the AJ's recommendation, therefore class certification was denied. Complainant subsequently filed this appeal. CONTENTIONS ON APPEAL On appeal, Complainant states that the HRC-St. Louis consisted of over 800 civilian employees, 80% Black, female, and over the age of 40. He further states that the mean grade of those employees was GS-0203-05/06, with over 15 to 20 years of specialized career management reservist experience. See Complainant's Brief at 2. Complainant further states that, from approximately 1990 to 2010, following recommendations of the Department of Defense's Base Closure and Realignment Commission (BRAC), HRC-St. Louis engaged in a discriminatory Agency-wide process of placing enlisted personnel in higher-graded jobs as managers without the required knowledge, skills, and ability to perform those specialized jobs. Id. He states that, because of this practice, Human Resources Assistants were repeatedly and continuously tasked to "train up" without the benefits of pay and grade commensurate with duties performed. Id. Complainant notes that, following the implementation of BRAC, the part of the Agency in which he worked transitioned from a Record Center to a Command. He further notes that the Record Center produced employees skilled and knowledgeable in the life-cycle management of reserve soldiers, which extended from 10 to 40 years of specialized training. Id. Complainant notes that the Command brought in military soldiers at higher grades and placed them in managerial positions with an average tenure of three months to two years. Id. He argues that this has been a "terrible injustice that has reverberated from its onset to the present," which has had an impact on grade-levels on Priority Placement Lists, retirement annuities, and job classifications, and has "ultimately depressed earnings and altered living standards." Id. Complainant argues that the Agency used BRAC to "deliberately, maliciously, and intentionally" permit lower-graded employees to remain at the bottom, even though their duties continued to accrete beyond the defined classification for GS-06 positions. He posits that this was done in order to provide a foundation for the Agency's "continued discriminatory practices" in placing military personnel in higher-graded positions, when in fact lower-graded employees were required to continuously "train up." Id. at 3 Finally, Complainant argues that the Command did not make reasonable efforts to minimize the hardship on employees adversely impacted by the 2005 BRAC involuntary separation, which was effective October 2010, because the Command failed to offer those employees BRAC entitlements. Id. He further argues that the Agency was "negligent and indifferent toward civilian employees that provided the brain-power and continuity" needed by the Agency for its Reservist Career Management Training. Id. at 3-4. In its brief in opposition to Complainant's appeal, the Agency argues that Complainant does not address the issues relating to the AJ's decision to dismiss his class complaint but attempts to address the merits of alleged discrimination resulting from the unoffered VSIP and job-swap benefits. See Agency's Brief at 2. In so doing, the Agency notes that Complainant's minimal attempt to address the class certification requirement of numerosity amounts to nothing more than a list of putative class-action complainants along with their addresses and telephone numbers (discussed further, infra). It notes that there is no evidence that the "class complainants" wish to be a part of the class complaint proposed by Complainant.2 The Agency further argues that Complainant has failed to meet the class complaint requirements of commonality and typicality, adequacy of representation, and numerosity, which must be satisfied before any such class complaint goes forward. Id. at 3-6. ANALYSIS AND FINDINGS 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 putative 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 Agency may reject a class complaint if any of the prerequisites are not met. See Garcia v. Dep't of Justice, EEOC Request No. 05960870 (Oct. 10, 1998) (citing 29 C.F.R. § 1614.204(d)(2)). Further, a class complaint must identify the policy or practice adversely affecting the class as well as the specific action or matter affecting the class agent. 29 C.F.R. § 1614.204(c)(1). 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)(1) of the Federal Rules of Civil Procedure as was its predecessor regulation, 29 C.F.R. § 1613.601(b)(1). 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. General Telephone Co. v. Equal Emp't. Opp. Comm'n., 446 U.S. 318, 330 (1980); see Harris v. Pan Am. World Airways, 74 F.R.D. 24, 23 F.R. Serv. 2d 1335, 1349 (N.D. Cal. 1977) (no specific numerical cut-off points for numerosity). The Commission has held that the relevant factors to determine whether the numerosity requirement 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 at issue, and the size of each member's claim. Jones, et al. v. U.S. Postal Serv., EEOC Appeal No. 0120101848 (May 25, 2012) citing Carter, et al. v. U.S. Postal Serv., EEOC Appeal No. 01A24926 (Nov. 14, 2003); see Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). The AJ found that the class complaint did not meet the numerosity requirement because Complainant identified only two other members of the putative class, bringing the total of class members to three. This finding squares with Commission precedent. See Malone v. U.S. Postal Serv., EEOC Appeal No. 0120050081 (Apr. 20, 2006) (a class of seven is too small to warrant certification); see also Jones v. General Serv's Admin., EEOC Appeal No. 0120050310 (Jun. 1, 2006) (a class of 15 is too small). Despite requests from the EEO Counselor and the AJ, Complainant did not provide information on numerosity in the class certification stage before the AJ which would support his claim that a class should be certified. On appeal, however, the Class Agent submitted what he identified as a list of 20 putative class members. See Complainant's August 18, 2011, Statement on Appeal at 5. Complainant also stated on appeal that the HRC-St. Louis consisted of over 800 civilian employees, 80% Black, female, and over the age of 40. Complainant alleged that the Agency did not offer the Job Swap and VSIP programs to any HRC employees, essentially representing that the potential class could be as large as 800. Therefore, we find that Complainant has provisionally met the numerosity requirement, subject to our other findings, below. Commonality and Typicality The purpose of the commonality and typicality requirements is to ensure that a class agent possesses the same interests and has experienced the same injury as the members of the proposed class. See General Telephone Company of Southwest v. Falcon, 457 U.S. 147 (1982). While these two criteria tend to merge and are often indistinguishable, they are separate requirements. Id. Commonality requires that there be questions of fact common to the class; that is, whether the same agency action or policy affected all members of the class. Typicality, on the other hand, requires that the bases of the Class Agent be typical of the claimed bases of the class. The underlying rationale of the typicality and commonality requirement is that the interests of the class members be fairly encompassed within the Class Agent's claim. Id. Here, the Class Agent alleges discrimination against HRC employees on the bases of race, sex, color, and reprisal when, on August 10, 2010, the Agency did not offer the Job Swap program to HRC employees and did not give HRC employees the opportunity to accept a $25,000 VSIP, as employees of the Army Review Board Agency were. Due to the straightforward and clear nature of the Class Agent's allegations we find that the Class Agent has met the commonality requirement. The Commission now turns its attention to typicality, in other words, whether the bases of the Class Agent are typical of the claimed bases of the class. In this regard, the Commission notes that for the individuals now identified as putative members, there is no evidence in the record from which to glean, and the Class Agent fails to provide, information regarding the race, color, sex, and prior EEO activity of these named putative members. See 29 C.F.R. § 1614.103(a). The Commission further notes that not all of the putative class members are the same sex as the Class Agent even though sex is one of the bases identified by the Class Agent as a basis for the actions alleged to be discriminatory. See Formal Complaint; see also Complainant's August 18, 2011 Statement on Appeal at 5. Based on this, the Commission finds that some of the Class Agent's proposed bases for the class fail to meet the typicality requirement. However, a fair reading of Complainant's complaint is that race and color were the reason the Agency did not offer the job swap benefits or VSIP to employees of HRC. Therefore, we modify the class definition to remove the bases of sex (and reprisal), and to confine the claimed class bases to race and color. Adequacy of Representation Another requirement is that the Class Agent, or his representative, adequately represents 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. Besler, et al. v. Dep't. of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001); Woods v. Dep't. of Hous. and Urban Dev., EEOC Appeal No. 01961033 (Feb. 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. Id. As stated earlier, the AJ determined that the Class Agent was not represented by adequate counsel because he was represented by a Union Representative and there was no evidence this individual had experience representing class complainants. The Commission notes that there is some evidence Complainant may have since acquired the services of a licensed attorney. See Agency's August 19, 2011 Brief in Support of Appeal, Certificate of Service. There is no information in the evidentiary record, however, which clarifies whether this attorney has adequate experience, or any experience at all, representing class complainants. Notwithstanding, the Commission notes that all of the arguments and supporting documentation submitted on appeal were provided by Complainant, not his Union Representative or attorney. We therefore find that Complainant has failed at this time to meet the adequacy of representation requirement. However, we will provisionally certify the class on the condition that Complainant obtain legal counsel who is experienced in representing class complainants in the federal sector process. Therefore, the Commission will provisionally certify a class based on race (Black) and color (black) when employees of HRC-St. Louis were not offered job swap benefits and the VSIP during the implementation of BRAC in 2010. The complaint is remanded to the AJ in order to conduct discovery and for Complainant to provide information to support his claim that a class should be certified. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that the Agency's acceptance of the AJ's recommendation denying class certification was in error. The Commission provisionally certifies a class composed of race (Black)/color (black) employees of HRC-St. Louis who were not offered job swap benefits and the VSIP during the implementation of BRAC in 2010.The Agency's final order is hereby REVERSED, and the complaint remanded for further processing. ORDER The Agency is ORDERED to take the following action within thirty (30) days of the date this is issued: 1. The Agency shall transfer this case to the St. Louis District Office, and request assignment to an AJ. The AJ shall ascertain from Complainant whether he still wishes to pursue this class complaint. If so, the AJ must allow Complainant, as the Class Agent, a reasonable amount of time to furnish evidence to establish that he has satisfied the adequacy of representation requirement, as set forth in 29 C.F.R. § 1614.204(a)(2)(iv). The Class Agent also must furnish evidence that the proposed class can meet the numerosity requirement for the class, as revised, as set forth in 29 C.F.R. § 1614.204(a)(2)(i). 2. Upon expiration of the time period established by the AJ, the AJ must render a decision on the issue of class certification, either certifying or dismissing the class complaint. 3. The Agency shall hold the individual complaint in abeyance pending the outcome of the class action complaint, and timely send Complainant written notice regarding this action. The Agency is 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 verifying that the corrective action has been implemented. 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 (M0416) 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 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. The requests 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 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 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 __12/6/16________________ 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 EEOC regulations regarding class complaints do not provide for putative class members to "opt out" of the class action. See 29 C.F.R. § 1614.2014. Therefore, whether the putative class members wished to be a part of the class is immaterial. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113722 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120113722