Joel P., Complainants, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120120181 Agency No. 4C190007810 Hearing No. 530-2011-00044X DECISION Complainant, the putative class agent, filed an appeal from the Agency's August 30, 2011, final order dated November 12, 2014, concerning his equal employment opportunity (EEO) 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. For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented on appeal are whether the EEOC Administrative Judge (AJ) properly determined that the class complaint should not be certified on the grounds that it failed to meet the criteria set forth in the Commission's regulations at 29 C.F.R. § 1614.204(a)(2); and whether the putative class agent's individual complaint should be dismissed because it states the same claim that is pending before or has been decided by the Agency or Commission pursuant to the Commission's regulations at 29 C.F.R. § 1614.107(a)(1). BACKGROUND Complainant Brantley, the putative class agent, previously worked as a Supervisor of Customer Services at the Bustleton Station of the Philadelphia, Pennsylvania Post Office. He retired from the Agency on July 2, 2010. On August 8, 2006, Complainant was disqualified from the Associate Supervisor Program (ASP) because of his disciplinary history. Complainant had filed a previous EEO complaint on this issue and received a decision in his favor from an EEOC Administrative Judge (AJ), affirmed on appeal by the Commission in EEOC Appeal No. 0720090020 (Feb. 20, 2009). As a result of that decision, the Agency placed Complainant into the ASP in December 2010. After he successfully completed the program, he was placed into a Supervisor of Customer Service position in Bustleton Station. In this instant complaint, Complainant stated that, between August 2005 and December 2009, many African-American employees were disqualified from the ASP for various reasons, including not meeting attendance requirements, failing to pass the test, failing to meet safety requirements, failing to pass the interview, and failing to pass the 16-week classroom requirements. Complainant maintains that these disqualifications were discriminatory because the Agency deemed a White female suitable for the ASP process despite her alleged unscheduled absences. Complainant contacted an EEO Counselor on July 19, 2010, which was two weeks after his retirement. On October 25, 2010, Complainant filed an EEO class complaint of discrimination in which he alleged that, between August 2005 and December 2009, the Agency discriminated against him and 32 other craft employees on the basis of race (African-American) when the Agency disqualified them from the ASP but did not disqualify a White female employee who had unscheduled absence issues. On August 15, 2011, the AJ assigned to the case dismissed the class complaint. Specifically, the AJ found that Complainant, as putative class agent, failed to meet the class-certification requirements under 29 C.F.R. § 1614.204(a)(2). Specifically, the AJ found that Complainant failed to establish that the class met the numerosity, commonality, typicality, and adequate representation requirements to warrant certification of the class. The Agency subsequently issued a final order dated August 30, 2011, fully implementing the AJ's dismissal of the class complaint. The Agency also found that Complainant's individual complaint should be dismissed for stating the same claim that had already been decided by the Agency or Commission. CONTENTIONS ON APPEAL In support of his appeal, Complainant contends that the class should be certified and that the record establishes that the class members were subjected to discrimination. Complainant also contends that his individual complaint should not be dismissed because he did not receive full relief in his previous EEO complaints in which he raised the same claims of discrimination. The Agency does not present any new arguments in opposition to the appeal. ANALYSIS AND FINDINGS Class Certification The purpose of class action complaints is to economically address claims "common to [a] class as a whole . . . turn[ing] on questions of law applicable in the same manner to each member of the class." General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982); Mitchell, et al. v. Department of the Air Force, EEOC Appeal No. 01A41492 (Oct. 18, 2005); Mastren, et al. v. U.S. Postal Service, EEOC Request No. 05930253 (Oct. 17, 1993). EEOC regulations provide that a class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (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; and (iv) the agent of the class, or if represented, the representative will fairly and adequately represent the interests of the class. 29 C.F.R. § 1614.204(a)(2). The regulations further provide, at 29 C.F.R. § 1614.204(d)(2), that a class complaint may be dismissed if it does not meet the four requirements of a class complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. 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 Co. of Southwest v. Falcon, 457 U.S. 147 (1982). Both commonality and typicality serve as guideposts for determining whether, under the circumstances, maintenance of a class action is economical and whether a proposed class agent and the remaining potential class members' claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Id. 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, that the same agency action or policy affected all members of the class. Garcia v. Dep't of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003). Typicality, on the other hand, requires that the claims or discriminatory bases of the class agent be typical of the claimed bases of the class. Id. A class agent must be part of the class he seeks to represent, and must "possess the same interest and suffer the same injuries" as class members. Falcon, 457 U.S. at 160. Moreover, claims must be sufficiently typical to encompass the general claims of the class members so that it will be fair to bind the class members by what happens with the class agent's claims. Conanan v. Federal Deposit Insurance Corp., EEOC Appeal No. 01952486 (Jan. 13, 1993) (citing Falcon, 457 U.S. at 156). 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. Falcon, 457 U.S. at 147. In this case, we find that Complainant has not established the requirement of commonality. The record reflects that Complainant has not suffered the same harm as the other class members because he has already obtained the relief the class is seeking. Specifically, Complainant gained entry into the ASP program and was promoted to the position of Supervisor of Customer Service as a result of a prior EEO complaint. Additionally, in his brief in support of his appeal, Complainant contended that "some members" of the potential class were treated differently than a White female employee. This statement leads to ambiguity over the specific harm suffered by all members of the class, i.e., discrimination based on race versus discrimination based on sex. We determine that Complainant has not established questions of fact common to the class, and therefore has not established commonality. Likewise, we find that Complainant also failed to establish that his individual claim is typical of the class as a whole. As addressed in our commonality analysis above, Complainant's entry into the ASP program and promotion to the position of Supervisor of Customer Service distinguishes his interest and injury from that of the other members of this putative class. Therefore, we determine that it would be unfair or inappropriate to bind the class members to the outcome of Complainant's claim because his experience is not representative or typical of other putative class members. See Ria T. v. Central Intelligence Agency, EEOC Appeal No. 0120152753 (Aug. 2, 2017). Accordingly, we find that the AJ properly concluded that Complainant failed to establish the commonality and typicality requirements. Numerosity The numerosity prerequisite states that the potential class must be sufficiently numerous so that a consolidated complaint by the members of the class, or individual, separate complaints from members of the class is impractical. See 29 C.F.R. § 1614.204(a)(2)(i). The focus in determining whether the class is sufficiently numerous for certification is the number of persons affected by the Agency's alleged discriminatory practice(s). See White, et al. v. Dept of the Air Force, EEOC Appeal No. 01A42449 (Sept. 1, 2005). 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. Carter, et al. v. U.S. Postal Serv., EEOC Appeal No. 01A24926 (Nov. 14, 2003). The United States Supreme Court has held that the numerosity requirement of Federal Rule of Civil Procedure 23 does not impose a numerical minimum or cut-off point for the size of the class but, instead, requires an examination of the facts of each case. General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980); Harriss v. Pan American World Airways, Inc. 74 F.R.D. 24 (N.D. Cal. 1977). We note that, 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 Jones v. U.S. Postal Service, EEOC Appeal No. 0120101848 (May 25, 2012); Tschappat v. Dep't of Labor, EEOC Appeal No. 07A40074 (May 5, 2005), req. for recon. den'd, EEOC Request No. 05A50938 (Sep. 15, 2005) (citing Moten, et al. v. Federal 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. Here, Complainant identified 33 individuals that comprised the potential class. However, a review of the record reveals that it is unclear if there would actually be 33 members in the class. Specifically, Complainant stated that the potential class members were discriminated against when, between August 2005 and December 2009, they were disqualified from the ASP although a White female employee who had unscheduled absence issues was not disqualified from the program. The documentation provided to the AJ by Complainant showed that only three of the 33 identified potential class members were disqualified from the ASP program for attendance issues. Additionally, Complainant stated in his appellate brief that the number of class members could be in the thousands, but provided no evidence to support his assertion. As a result, we find that the total number of the class cannot be approximated, and as such, Complainant has failed to establish numerosity. See Thompson v. Tennessee Valley Authority, EEOC Appeal No. 01A34535 (Sep. 23, 2004) (while class agent alleged 34 class members, no evidence showed that class members and class agent had similar bases and issues; putative class therefore could not be approximated and class agent failed to establish numerosity). Further, even if we were to assume, arguendo, that the class can be approximated at 33 members, a review of the record reveals that all 33 individuals work in the same geographical location and are not dispersed over a broad area. Complainant offered no evidence to establish that the potential class's number is so numerous that it would make joinder of its complaints impracticable. See for example King v. United States, 84 Fed. Cl. 120, 124-125 (Fed. Cl. Ct. 2008) (where plaintiffs are dispersed geographically, court more likely to certify class action); See also Abdul-Raheem, et al. v. Dep't of Defense, EEOC Appeal No. 01A12565 (May 1, 2003) (complainant failed to establish numerosity with 34 potential class members); Harris, et al. v. Dep't of Treasury, EEOC Appeal No. 01922968 (Nov. 18, 1992) (complainant failed to establish that joinder of 32 individual's claims would be impracticable, especially where all work in same geographical location; numerosity not established). Consequently, we find that Complainant has failed to establish the numerosity requirement. Adequacy of Representation "Adequacy of representation" means simply that the class agent has demonstrated that he, or a designated representative, will fairly and adequately protect the interests of the class. 29 C.F.R. §1614.204(a)(2)(iv). The class agent must show that he is qualified, experienced, and generally able to conduct proposed litigation. See Drummond v. Dep't of the Army, EEOC Appeal No. 01940520 (August 19, 1994). In this case, Complainant, who is not an attorney, has not retained counsel. He has not demonstrated that he has the necessary skills and experience to adequately and fairly protect the interests of the class, nor is there anything in the record that would establish that a qualified attorney has indicated a willingness to act as a legal representative for the class. The Commission has generally held that a non-attorney class agent who does not possess the necessary experience, knowledge, or skills to represent a class is not an adequate representative. See Woods v. Dep't of Housing and Urban Development, EEOC Appeal No. 01961033 (Feb. 13, 1998); Wirkler v. Dep't of Defense Dependant Schools, EEOC Appeal No. 01881849 (August 16, 1988); Anderson, et al., v. Dep't of Defense, EEOC Appeal No. 01A41492 (October 18, 2005) (class certification was denied where agent did not possess necessary experience, knowledge, or skills to represent class, and did not obtain experienced counsel to represent class). Here, we find that the class does not meet the adequacy of representation requirement. We note that if Complainant had established all of the other requirements for a class certification, we could have afforded him another opportunity to obtain adequate representation. However, because he did not establish commonality and numerosity, this is not necessary. After a review of the entire record, we find that the class does not meet the certification requirements pursuant to 29 C.F.R. § 1614.204(a)(2), and we will affirm the decision to deny the class certification. The Individual Complaint After finding that the putative class did not meet certification requirements, the AJ ordered the Agency to reinstate and continue processing Complainant's individual complaint in accordance with 29 C.F.R. § 1614.204(d)(7). Subsequently, the Agency dismissed Complainant's individual complaint. The EEOC regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Here, the record reflects that, in 2006, Complainant filed an EEO complaint, docketed as Agency Complaint No. 1C-192-0015-06, in which he alleged that he was discriminated against when he was denied entry into the ASP on August 8, 2006. Complainant received a favorable decision in that case, and the Commission issued an appellate decision affirming the finding of discrimination in EEOC Appeal No. 0720090020 (Feb. 20, 2009). As a result of the favorable finding, Complainant was placed into ASP and, upon his successful completion of the program, was placed into a supervisory position. Further, Complainant and the Agency entered into a settlement agreement on August 1, 2009, in order to address any outstanding issues regarding remedial relief. Additionally, on May 5, 2008, Complainant filed another formal EEO complaint, docketed as Agency Complaint No. 1C-192-0008-08, in which he alleged that his disqualification from the ASP on August 8, 2006, was discriminatory on the bases of race and reprisal because a White female employee was not disqualified even though she did not meet the suitability requirements because of attendance issues. Complainant withdrew this complaint during the hearing stage after he received the aforementioned Commission appellate decision, and the AJ dismissed the complaint. Further, Complainant alleged breach of the August 1, 2009, settlement agreement in EEOC Appeal No. 0120103567 (Jan. 27, 2012), request for reconsideration denied, EEOC Request No. 0520120334 (Dec. 21, 2012), in which the Commission found that no breach had occurred. After a review of the entire record, we find that Complainant's individual complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) because the complaint stated the same claims that were previously raised in Agency Complaint No. 1C-192-0015-06, EEOC Appeal No. 0720090020, and Agency Complaint No. 1C-192-0008-08. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order which found that the class complaint should be dismissed because Complainant, as putative Class Agent, failed to meet the class certification requirements under 29 C.F.R. § 1614.204(a)(2); we further AFFIRM the dismissal of Complainant's individual complaint pursuant to 29 C.F.R. § 1614.107(a)(1). 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 (S0610) 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. 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: _________________________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat 10-13-2017 _________________________________________ Date 2 0120120181 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0120120181