Aurore C., et.al., 1 Complainant, v. W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency. Appeal No. 0120150342 Hearing No. 570-2014-00087X Agency No. 13011C DECISION On October 9, 2014, Complainant, the putative Class Agent, filed an appeal from the Agency's September 9, 2014, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES 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). Also before the Commission on appeal is the question of whether the class's representative should be disqualified from representing the class and the Class Agent in her individual complaint because he is also a potential witness in the case. BACKGROUND At the time of events giving rise to this complaint, the putative Class Agent worked as an Auditor, GS-13, at the Agency's Benefits Administration and Pay Department ("BAPD") in Washington, D.C. In March 2013, the Agency announced that it was beginning to take steps to reorganize the BAPD. The reorganization included the establishment of a new division, the Asset Evaluation Division (AED), which would take over the sole responsibility for audits involving the evaluation of asset plans. Class Agent alleged that audits involving the evaluation of terminated pension plans comprised 40%- 60% of the work of the Auditors before the reorganization, but this function was being taken away under the reorganization. Subsequently, the Agency filled the new GS-14 Auditor positions with outside contractors. Class Agent applied for a GS-14 Auditor position in the AED, but on May 9, 2013, was told by the Agency that they were going to seek permission from OPM to "pass over" her as a preference-eligible candidate for the position on the ground that she was not qualified. On September 9, 2013, Class Agent filed an EEO complaint, which she identified as a class action complaint, alleging class-wide discrimination and harassment on the bases of race (African American), color (Black), sex (female), age (over 40), and reprisal for prior protected EEO activity when, from April 2013 through June 2013, the Agency took the following actions: 1. Employees in the Benefits Administration and Pay Department ("BAPD") were targeted to have their duties stripped down so that their positions could be reclassified and downgraded; 2. The position description of the BAPD Auditors was changed and written such that current BAPD Auditors will not be qualified for Auditor positions in the newly created Asset Evaluation Division; and 3. The announcement for Auditor positions in the Asset Evaluation Division required educational requirements which would result in the majority of the Auditors in BAPD not being qualified for the positions. The Agency referred the complaint to an EEOC AJ. On July 16, 2014, the AJ issued an Order requesting further specific information to determine whether the Commission should accept or dismiss the class complaint. Both the Agency and Complainant responded to the Order. On August 26, 2014, the AJ dismissed the class complaint for failure to satisfy the procedural prerequisites for a class. On September 9, 2014, the Agency issued a decision adopting the AJ's decision dismissing the class complaint and finding that Class Agent did not meet the requirements for class certification. Class Agent subsequently filed an appeal. CONTENTIONS ON APPEAL On appeal, Class Agent contends that the record meets the procedural prerequisites to establish a class complaint. Specifically, Complainant asserts that the evidence in the record establishes that the class meets the elements of commonality, typicality, numerosity, and adequacy of representation. Class Agent also requests that, in lieu of denying certification of the class complaint, the Commission remand to the AJ for additional discovery. In opposition to the appeal, the Agency contends that the Commission should affirm the Agency's final order finding that Class Agent did not establish typicality, commonality, numerosity, or adequacy of representation, and as a result, did not establish the requirements for certification of a class complaint. Additionally, the Agency asserts that the class's representative should be disqualified from representing the class and the Class Agent in her individual complaint because he is also a potential witness in the case. ANALYSIS AND FINDINGS 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. 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 particular circumstances maintenance of a class action is economical and whether the 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. See Falcon, 457 U.S. at 157. In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court clarified the standard for "commonality" under Federal Rules of Civil Procedure Rule 23(a)(2). The Supreme Court found that plaintiffs can establish commonality by providing "significant proof" than an employer operated under a general policy or a uniform employment practice of discrimination at a high level within a company, as opposed to leaving all employment decisions to the discretion of low-level supervisors spread throughout many different locations. Id. at 355-57. Federal courts have interpreted this to mean that, when determining whether a class should be certified, commonality is established when there is a company-wide policy or practice that is applied uniformly throughout the company or throughout one specific location. See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (the court allowed certification in a Title VII class claim and distinguished the case from Dukes where plaintiffs pointed to a uniform company policy that based account distributions on employees' past success with no discretion from management); Bolden v. Walsh Construction Co., 688 F.3d 893, 896, (7th Cir. 2012) (the court held that workers failed to satisfy commonality requirement for certification of class of African-American workers at all construction sites, and relying on Dukes found that commonality does not exist when multiple managers exercise independent discretion at different work sites); Youngblood v. Family Dollar Stores, Inc., No. 09 Civ. 3176, 2011 WL 4597555 (S.D.N.Y. Oct. 4, 2011) (not reported) (the court granted a class certification and distinguished the case from Dukes by determining that "the crux of this case is whether the company-wide policies, as implemented, violated Plaintiffs' statutory rights"). While we note this Supreme Court decision and how federal courts have applied it, we also must point out that Dukes specifically addressed an interpretation of the Federal Rules of Civil Procedure, which the Commission is not strictly bound by but does look to for guidance. Matheny v. Dep't of Justice, EEOC Appeal No. 05A30373 (Apr. 21, 2005). Here, Class Agent contends that the alleged discrimination against the class arose from employment decisions of the Agency Director and the BAPD Director. Additionally, all of the proposed class members are located in the same location in Washington, D.C. As a result, assuming without finding that Dukes applies to the federal sector, we find that this case is distinguishable from Dukes. We find that Class Agent did not establish typicality since she did not establish that all of the class members have the same discriminatory bases as she does. Class Agent stated that the discrimination suffered by the class is on the bases of race (African American), color (Black), sex (female), age (over 40), and reprisal for prior protected activity. However, a review of the record reveals that not all of the class members are alleging the same bases of discrimination. For example, Class Agent contends that there are "151 employees affected by the reorganization in a discriminatory and disparate manner." Class Agent's Response to Judge's Inquiry at 6. Class Agent then states that, of those 151 individuals, approximately 78 are African American and black, approximately 84 are female, approximately 57 participated in protected EEO activity, and many are over the age of 40. Id. As a result, Class Agent did not establish typicality. We also find that Class Agent did not establish commonality. There is no evidence in the record to support the finding that all of the class members possess the same interests and suffered the same harm as Class Agent. For example, there are no affidavits from other class members containing anecdotal evidence describing harm that they suffered similar to Class Agent. Instead, Class Agent provided broad conclusory allegations of class-wide harm. Mere conclusory allegations of discrimination, standing alone, do not establish commonality. Williams v. Dep't of Agriculture, EEOC Appeal No. 01A30562 (Sept. 23, 2004). Additionally, the proposed class consists of employees at various grade levels, various positions, and under various supervisors in various divisions, and Complainant did not make it clear in the record that these differences had no impact on the harm each class member allegedly suffered. Further, Complainant has very fact specific allegations of harm, such as she applied for a GS-14 Auditor position in the AED, and the Agency asked OPM to "pass over" her because they deemed her to be not qualified. There is no evidence in the record that any other proposed class member also applied for a GS-14 Auditor position and the Agency deemed him or her not qualified. As a result, we find that Complainant did not establish commonality. Numerosity Even assuming arguendo that Complainant did establish the commonality and typicality requirements, we find that she did not establish the numerosity requirement. 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. Dep't 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 (Sept. 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. Complainant stated that there were 151 employees who were affected by the reorganization in a discriminatory and disparate manner. However, the number of individuals in the proposed class is likely much lower since the 151 employees are not the same race, color, sex, or age as Complainant, and a majority of them have not engaged in prior protected EEO activity. See Thompson v. Tennessee Valley Authority, EEOC Appeal No. 01A34535 (Sept. 23, 2004) (Class Agent did not provide evidence to show that the proposed class members and the Class Agent had similar bases and issues, and as a result, the putative class could not be approximated and Complainant failed to establish numerosity). Because Complainant has not identified with specificity which class members have bases and issues similar to her claims, we find that the size of the class cannot be determined. As a result, Complainant has not established the numerosity requirement. Adequacy of Representation "Adequacy of representation" means simply that the Class Agent has demonstrated that she, 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 she is qualified, experienced, and generally able to conduct proposed litigation. See Drummond v. Dep't of the Army, EEOC Appeal No. 01940520 (Aug. 19, 1994). Here, Complainant is represented by a coworker who is a licensed attorney who works for the Agency and serves on the Union as a representative for employees. The record shows that this representative has represented employees in numerous EEO and labor matters in the past and has experience in civil rights matters. Additionally, this representative has represented a high number of employees at one time, including an EEO matter that included approximately 100 employees. The Commission has generally held that a representative who does not possess the necessary experience, knowledge, or skills to represent a class is not an adequate representative. See Anderson, et al, v. Dep't of Defense, EEOC Appeal No. 01A41492 (October 18, 2005); Woods v. Dep't of Housing and Urban Development, EEOC Appeal No. 01961033 (Feb. 13, 1998). Here we find that Complainant has satisfied the adequacy of representation requirement. Because Complainant did not meet all of the requirements of class certification, we affirm the AJ's and Agency's decision to deny certification of this class complaint. Complainant's Individual Complaint We note that, in Complainant v. Pension Benefits Guaranty Corporation, EECO Appeal No. 0120142444 (November 28, 2014), we ordered the Agency to hold Complainant's individual claim in abeyance pending the outcome of the class action certification. We now order the Agency to reinstate and continue processing Complainant's individual complaint of discrimination in accordance with 29 C.F.R. § 1614.204(d)(7). We further note that the Agency asserted that the Complainant's representative should be disqualified from the case (presumably both the class complaint and Complainant's individual complaint) because he is a necessary witness in the case. Specifically, the representative was present in his capacity as Union President when the Director of BAPD allegedly made numerous comments to Complainant that had a chilling effect on the EEO process. The Director denies making the comments, which makes the testimony of witnesses important to proving this allegation. We find that there is no conflict of interest with the representative also being a witness. While the Agency said the representative must be dismissed because they will call the representative as a witness if this goes to a hearing, we note that we allow complainants to represent themselves pro se in EEO complaints, and they therefore serve as a witness and as a representative of their case at a hearing. Additionally, representatives of complainants often provide affidavits regarding conversations they were party to in their capacity as a representative, or other evidence they may be able to supply such as information for attorney's fees and costs. Also, all witnesses must swear under oath to the truthfulness of their claims, and are put on notice that any untruthful testimony provided while sworn under oath could result in prosecution. Therefore, there is no reason to disqualify the representative from this case. CONCLUSION We find that Complainant did not establish the procedural prerequisites to certify a class complaint. 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, and ORDER the Agency to process the individual complaint as described in the Order below. ORDER To the extent it has not already done so, the Agency is ordered to process the Class Agent's individual claim of discrimination in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Class Agent/Complainant that it has received the remanded claim 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 becomes 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 calendar (60) 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 0120140848 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 9 0120150342