Aleshia C., et al., 1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120132664 Hearing No. 430-2010-00229X Agency No. 2004-0652-2009-102992 DECISION On July 1, 2013, the above-named Complainant, the putative Class Agent, filed an appeal from the Agency's May 30, 2013, final order concerning her 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the reasons that follow, the Agency's final order is AFFIRMED. ISSUE PRESENTED The issue presented on appeal is 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). BACKGROUND At the time of events giving rise to this complaint, Complainant, the putative Class Agent (African American), worked as a Supervisory Nurse Manager at the Agency's Medical Center in Richmond, Virginia. Complainant was originally an identified member of the class in Harrison-Gray, et al. v. Department of Veterans Affairs, EEOC Appeal Nos. 01A42149, 01A42150, 01A42151 (July 6, 2005); request for reconsideration denied, EEOC Request Nos. 05A51147, 05A51143, 05A51146 (August 24, 2005) (certifying a class of all African American employees, both past and present, with regard to the selection and distribution of awards at Richmond Medical Center since 1996). Once certified as a class complaint, the matter was remanded to an EEOC hearings unit for further processing. In 2007, the Agency filed a motion to redefine the class to specifically exclude supervisors from the class. The Agency noted that there were potential conflicts between supervisory and non-supervisory class members because supervisors were involved in the decision-making process for awards. On March 27, 2009, the EEOC Administrative Judge (AJ) assigned to the case granted the Agency's motion to exclude supervisors from the Harrison-Gray class. As a result, Complainant in the instant matter, who is a supervisor, was among those excluded from the Harrison-Gray class action. Eventually, the Harrison-Gray class case, as redefined, was settled in 2010 after two weeks of hearing testimony. On July 7, 2009, Complainant filed a new class complaint on behalf of herself and all other African-American supervisors excluded from the Harrison-Gray class complaint, alleging that the Agency discriminated against them on the basis of race (African-American) with regard to monetary and non-monetary employee awards from 1996 to the present. In essence, Complainant indicated that the class allegations were identical to the allegations raised in Harrison-Gray, but resolved the conflict issue because only supervisors were in the new proposed class. The EEOC Administrative Judge (AJ) assigned to the matter granted class certification. The Agency issued a final order in 2011 implementing the AJ's class certification decision and the parties engaged in discovery efforts and preparation for a hearing. On January 25, 2013, the Agency moved to dismiss the class again based on a claim of conflicts of interest among the supervisory class members. The Agency argued that the class included first-level African-American supervisors and higher-level African-American supervisors and asserted that class members, in essence, alleged that discriminatory award decisions were made by other class members. The Agency indicated that Complainant was essentially alleging that the discrimination in awards occurred at the nomination level,2 and that the immediate supervisors of the class members had exclusive and unfettered authority to nominate class members for awards. Complainant asserted that the "award system" relied heavily on the subjective determinations of these nominating supervisors and this resulted in discrimination against African Americans. However, according to the Agency, a review of the class members shows that these nominating supervisors were often also African-Americans and members of the class. The Agency asserted that the class therefore was composed of the same officials whom Complainant claimed had discriminated against other class members based on race. Of the 150 class members, the Agency asserted that over 100 conflicts of interest existed among the members. Further, the Agency argued that Complainant was an inadequate representative because she alleged that she had been denied awards although she "pretty much had African-American [supervisors] mostly"; therefore, Complainant herself was alleging she was discriminated against by other class members. Based on these conflicts between the class members and Complainant, the Agency indicated that the class did not meet the requirements of commonality and typicality. As such, the Agency requested that the AJ redefine the class into sub-classes of first-, second-, and third-level supervisors. Complainant responded to the Agency's motion on February 11, 2013, first arguing that the Agency issued a final order in 2011 fully accepting the AJ's certification of the class at that time. Complainant argued that the Agency therefore should be bound by that Final Order. Complainant also claimed that the class did meet the requirements of commonality and typicality because all members were subjected to the same policies and practices when it came to employee awards, and the Director of the Medical Center (Director) was ultimately responsible for the process and was the approving official for each and every award. Complainant also stated that she did not assert that other class members had subjected her to discrimination. She claimed that in the Nursing Service, where Complainant was a supervisor, the program was run by the Director and the Chief Nurse, both Caucasian. She believed that they discriminated against her. Complainant then argued that the class should not be decertified if 24 of the 150 class members served as second-level supervisors during the class period. For example, Complainant argued that the Nursing Service was under the control of the Chief Nurse; that the Environmental Service was under the control of the Chief of Environmental Science; and that the Food and Nutrition Service was under the control of the Chief of the Food and Nutrition Service. The Chiefs and the Director were not members of the class. Complainant argued that the class could include first- and second-level supervisors without creating a conflict and that there was no need for modification of the class. Complainant requested that the AJ therefore deny the Agency's motion. On May 2, 2013, the AJ issued a decision decertifying the class. The AJ noted that the class is comprised of first-, second-, and third-level supervisors and that the individuals responsible for recommending or not recommending their subordinates for awards were frequently also members of the class. The AJ provided Complainant as an example of a first-line supervisor who had second-line supervisors who were also members of the class. The AJ noted that Complainant pointed to the Chief Nurse, several levels above her, as an upper management official responsible for award decisions. However, the AJ found that this argument was inconsistent with the evidence collected during discovery. Complainant herself averred that she was not aware of any awards that were proposed for her that she did not receive. In addition, the AJ noted that the Agency provided additional examples of how Complainant alleged discrimination by other class members. The AJ therefore found that she could not purport to represent the interests of those members. Further, the AJ contended that it would not be feasible to "split the baby" because the Agency would be representing class members as management officials against the class, and also defending against the same member who might also be alleging discrimination by other members of the class. The AJ concluded that, although the class was originally certified, that certification should be re-examined in light of subsequent developments during litigation of the class complaint. The AJ determined that there was no other solution but to decertify the class. The Agency issued the final order implementing the AJ's decision. CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ erred in decertifying the entire class complaint. Complainant asserts that the award process comes under the sole oversight of the Medical Director (Caucasian), who personally must approve any award before it is provided to an employee. She also notes that the Director and the Chiefs set the budget for performance awards; therefore, while the performance ratings and performance award nominations were left for the supervisors to provide, all other decisions related to the awards program fell under the control of the Director. Complainant also argues that there was an additional category of awards called Special Contribution Awards. Complainant indicates that the budget for such awards is created each year by the Director and the Chiefs for each service line. Complainant claims that the Service Chiefs were the officials primarily responsible for identifying supervisors for the Special Contribution Awards and the Director approved the awards. Complainant indicates that there was no oversight over the award process and that the program was not properly monitored by management officials. Complainant further argues that statistical evidence demonstrates that the award system systematically disfavored African-American supervisors. Complainant provides anecdotal evidence of discrimination based on her personal experience, as well as the experiences of other class members provided in depositions collected during the discovery period. Complainant argues that the class had previously been granted certification for the class comprised of first-line and second-line supervisors in the Agency's final order from 2011 implementing the AJ's decision to certify the class to include all supervisors. Complainant asserts that she had not alleged other class members subjected her to discrimination, and instead had asserted that the Chiefs and the Director were the responsible management officials, not other members of the class. Further, Complainant claims that the AJ could have taken action that would have avoided the conflict by including only first-line supervisors and excluding higher-level supervisors, or created sub-classes to resolve the conflicts. Finally, Complainant indicates that there is evidence supporting a finding of class-wide discrimination as evidenced by the statistical data showing a disparity in awards given to African-American supervisors. As such, Complainant asks that the Commission enter a finding of disparate-impact discrimination. Further, Complainant argues that the Agency failed to properly maintain records of awards from FY 1996 to the present and she requests that the Commission draw an evidentiary adverse inference against the Agency. She asks in the alternative that the Commission find that the Agency subjected her to discrimination and remand her complaint for a determination on her individual relief. In response to the Appeal, the Agency asserts that the AJ correctly decertified the class. The Agency indicates that the AJ properly found conflicts between the first-line and second-line supervisors within the class. The Agency argues that Complainant provided contradictory statements that the members of the class were not the ones to blame for the alleged discrimination. The Agency notes, however, that Complainant's supervisor would have been the person to nominate her for an award. The Agency points to the deposition records of the class members that confirmed that those nominated by their supervisors for awards had those awards approved by upper management. The Agency also notes that Complainant failed to include the actions of the Nurse Professional Standards Board (NPSB) in the awards given to nurses; as such, the NPSB played a role in the review and approval of awards for class members. The Agency indicates that class members served in senior leadership roles on the NPSB, including one class member who serves as the Chair of the NPSB. The Agency also asserts that Complainant failed to show that her claims were typical of the class complaint. The Agency notes that Complainant had "mostly African-American supervisors" who failed to recommend her for awards. The Agency argues that Complainant claimed that the Director and the Chiefs discriminated against the class. However, based on Complainant's deposition, the Agency notes that Complainant argued that her supervisors should have recommended her for awards. As such, Complainant was not really claiming that the Director or the Nurse Chief denied her awards, but that her immediate supervisors (who were often class members) did not nominate her. The Agency contends that Complainant's claims of discrimination therefore were not typical of the claims raised by the putative class. Finally, the Agency argues that, due to the number of conflicts of interest within the putative class and the failure of the class to meet the requisites of commonality and typicality, the AJ had no other option but to dismiss the class complaint. The Agency asks that the Commission affirm the AJ's decision decertifying the class. ANALYSIS AND FINDINGS The Commission recognizes that the AJ has latitude to define the class, subdivide it or even to decertify the class if necessary. 29 C.F.R. § 1614.204(d); See Hines, Jr. v. Dep't of the Air Force, EEOC Request No. 05940917 (Jan. 29, 1996). In the case at hand, the AJ originally had granted certification in 2011, and the Agency implemented the certification decision in its 2011 final order. However, following development of the record and discovery conducted by both parties, the Agency determined that the class no longer met the requirements for continued certification. Therefore, it moved for the AJ to modify the class or, in the alternative, decertify the class. Over Complainant's objections, the AJ issued her decision to decertify the class. We find that the Agency is not bound by its 2011 final order as Complainant has argued. Rather, the class procedures contained in our regulations contemplate that the AJ may review certification following discovery as occurred herein, and has the authority to redefine or decertify the class as deemed necessary. Requirements of a Class Complaint EEOC Regulation 29 C.F.R. § 1614.204(a)(2) states 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. EEOC Regulation 29 C.F.R. § 1614.204(d)(2) provides 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. The AJ had previously found that the class had met all the requirements. However, after further discovery during the processing of the class complaint, including the depositions of numerous management officials/class members, the AJ determined that the class should be decertified based on a lack of commonality and typicality. Therefore, the only issue before the Commission is whether the class meets these requirements. 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 the same agency action or policy affected all members of the class. "Typicality," on the other hand, requires that the individual claims of the class agent be typical of the claims of the class as a whole. 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. As noted above, Complainant asserted that African-American supervisors at the Agency's facility were routinely ignored when employee award decisions were made. Complainant asserts that, as a result, there has been a disparity in the awards given to African-American supervisors throughout the Agency's facility, including a substantial loss of monetary benefits. In support of her claims, Complainant provided the report of an expert witness showing that African-American supervisors statistically received less recognition than would be expected in a race-neutral system. Complainant argued that all award decisions ultimately fell under the authority of one official - the Director (Caucasian), who was charged with the responsibility to create and manage the awards system and was the final approval authority for all awards. The record establishes that there were different types of awards given to class members. Performance awards were based on performance ratings and the nominations of rating supervisors. Special Contribution awards were given to individual employees or groups to recognize a contribution, act, service or achievement that benefitted the Agency. The AJ also found that nominations for these awards were made by supervisors with the approval of the Chiefs and the Director. The budgets for both types of awards were set by the Director and the Chief of Fiscal Services. The Director was the final approval authority for all awards. Complainant argues that the Director and the Chiefs, who were ultimately responsible for the entire awards program, did not take steps to ensure that the awards were provided in a nondiscriminatory fashion, including by failing to conduct an internal analysis of potential race-based barriers to receiving awards. However, the evidence of record shows that a class member's immediate supervisor provided the recommendation for an award, which was submitted to the appropriate Chief for review. Some nominations were then submitted to professional boards such as the Nurses Professional Standards Board (NPSB) for review. We note that the record establishes that class members sat on the NPSB. Regardless of its review path, every recommendation for an award was ultimately approved by the Director. However, despite this ultimate approval authority, the record contained no evidence, and Complainant did not claim, that there was any occasion where a recommendation by an immediate supervisor ultimately was not approved. In fact, when this class originally was certified, Complainant identified the discretionary and subjective nature of the nomination process as a purported cause of the discrimination. Her current argument appears to be inconsistent with this position. Based on our review of the record, we find that the AJ correctly determined that Complainant failed to meet the requirement of commonality because the different levels of supervisors have conflicting interests. As the record, as it is developed at this point, seems to show that receipt of an award is wholly dependent on a nomination from a class member's direct supervisor, then class members who are first-line supervisors may be in the position of alleging discrimination against other class members who are second-line supervisors. In addition, the record shows there were other class members who served on the NPSB. The NPSB also played a role in the award process for class members who, like Complainant, were nurses. Therefore, we find that a conflict of interest exists for these class members as well. Although Complainant has argued that the Chiefs and the Director have the final say, it appears from the record that, once an awards nomination is initiated by the individual supervisors, its approval is inevitable. While Complainant has presented evidence of a statistical disparity in awards to African-American class members, she has failed to identify a policy or practice that created the disparity other than the unfettered discretion of immediate supervisors to nominate employees for awards. While she argues that the Chiefs and the Director should have controlled the program better, based on the current record it appears that any discrimination that occurred seems to lie in the nomination process. Therefore, due to the inherent conflicts of interest this case presents between the various supervisory levels of class members, we concur with the AJ's determination that this class cannot meet the prerequisite of commonality. Moreover, to the extent that some class members did not have immediate supervisors within the class, Complainant's own claim is not typical of those individuals because she acknowledges that "most" of her immediate supervisors during the relevant period were also African-American, and so members of the class, and asserts that she should have been nominated for awards by these supervisors, but was not. Unlike many of the other class members, as a nurse, her own award nominations also would have been reviewed by the NPSB, although she has not identified how this Board might have contributed to any alleged discrimination. In sum, we agree with the AJ's determination that Complainant's individual claims are not typical of the class members as a whole. 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 Tel. Co. v. Equal Emp't Opp. Comm'n, 446 U.S. 318, 330 (1980). We note that the AJ found that the class met this requirement in the initial decision granting certification. The AJ did not address this issue in her decision to decertify the class. Further, the parties do not challenge this requisite. Accordingly, we need not reach this matter. Adequacy of Representation The final requirement is that Complainant, or her representative, adequately represent the class. To satisfy this criterion, Complainant 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 Complainant, 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. Again, this issue was addressed by the AJ in the initial decision finding class certification. The Agency and Complainant did not contest the AJ's determination. Accordingly, we need not reach this matter. 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 final order adopting the AJ's decision that Class Agent did not meet the requirements of class certification. The individual complaint is REMANDED for further processing in accordance with the Order below. ORDER To the extent it has not already done so, the Agency is ordered to process Complainant's individual claim of discrimination in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the 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 the 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 There were no examples of an award being denied or disapproved after an employee had been nominated for an award by the first-level supervisor. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132664 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 11 0120132664