U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candice B.,1 et al., Complainants, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120160714 Hearing No. 510-2015-00143X Agency No. HS-CBP-01378-2014 DECISION On December 10, 2015, Complainant Candemeres, a/k/a Candice B., as the class agent, filed a timely appeal from the Agency's November 9, 2015, decision 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 Commission REVERSES the Agency's decision and certifies the class. ISSUE PRESENTED The issue presented on appeal is whether the AJ properly denied class certification in a complaint in which Complainant, on behalf of herself and others similarly situated, challenged the Agency's push-up test requirements as being discriminatory against women seeking to become permanent Customs and Border Protection Officers. BACKGROUND In 2007, the Agency decided to review the physical fitness standards for the Customs and Border Protection Officer (CBPO). Prior to October 2009, there were no push-up requirements in the physical fitness tests for the CBPO position. The Agency's Headquarters Personnel Research and Assessment Division (PRAD) oversaw the development of the physical fitness tests. Two outside contractors, PDRI and Human Performance Systems, Inc., were hired to assist in a job analysis of the CBPO position and to validate physical fitness tests for the position. The new physical standards tests, which included push-up requirements, were approved by the Acting Customs and Border Protection Commissioner and implemented in October 2009. Cut-off scores were the same for applicants of both sexes applying for a CBPO position. In order to obtain a permanent CBPO position, a candidate had to successfully complete three separate fitness tests. Each of the three tests contained a push-up requirement. In order to pass the first pre-employment fitness test (PFT-1), the applicant had to perform at least 12 push-ups in one minute. To pass the second test, the PFT-2, the applicant had to complete 17 push-ups in one minute. If an applicant successfully completed the PFT-2, the candidate was selected as a Trainee and invited to the Federal Law Enforcement Training Center known as the Academy. As part of the Academy training, the Trainee then had to complete the Fitness Graduation Standard (FGS) which included the performance of 24 push-ups in one minute. Agency written guidelines included detailed instructions regarding how the push-up tests were to be performed, including how to grade the push-up tests and how they were to be conducted. Complainant passed the PFT-1 and the PFT-2 and was hired on November 21, 2013, as a CBPO. She was assigned to the Miami International Airport (MIA), Miami Field Office, Office of Field Operations in Miami, Florida. The job offer letter informed Complainant that her appointment to the position of CBPO was subject to a probationary period, contingent upon her completion of all three phases of the CBPO Basic Training. She was accepted into the CBPO Basic Training at the Federal Law Enforcement Training Center (FLETC). Complainant entered on duty on December 16, 2013, and spent a month at the MIA for pre-Academy training. On January 17, 2014, she began the CBPO training program. On May 6, 2014, the Agency terminated her from her probationary employment after she failed to successfully complete the FGS push-up requirement at the third stage of the process. On July 22, 2014, after concluding EEO counseling, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex when, on May 6, 2014, the Agency terminated her during her probationary period because she failed to pass the push-up requirements of the FGS. At the conclusion of the investigation of her complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. On January 28, 2015, Complainant requested a hearing. On April 27, 2015, Complainant filed a Motion for Class Certification, with the AJ. On October 7, 2015, the AJ issued a decision denying class certification finding that the typicality, commonality, and numerosity criteria for class certification were not satisfied. The AJ did find that adequacy of representation, the fourth criterion, was met. On November 3, 2015, after the AJ's October 7, 2015 denial of class certification, the Agency received a letter from Complainant requesting that a second class agent (CA-2) be included as an additional class agent because CA-2 did not pass the PFT-1 on February 13, 2013. On November 13, 2015, after the Agency had issued its November 9, 2015, decision fully implementing the AJ's October 7, 2015 decision, Complainant sent another letter to the Agency requesting the addition of a third class agent (CA-3) because she did not pass the PFT-2 on July 31, 2013. AJ's Denial of Certification The AJ found that Complainant failed to satisfy the criteria needed to certify a class complaint with the exception of adequacy of representation. Addressing commonality and typicality, the AJ found that Complainant was not affected by, had no interest in, and her claim was not common or typical of the women who failed the PTF-1 and/or PTF-2 because she had passed the PTF-1 and the PTF-2. The AJ reasoned that having passed the PTF-1 and PTF-2, Complainant was extended a conditional appointment and her claim therefore was unlike the women who failed the PTF-1 and/or PTF-2 and who did not progress to the Agency's Basic Training Program at the FLETC. Having so found, the AJ concluded that Complainant's interests were common and typical of the class of women who passed the PTF-1 and the PTF-2, proceeded to the Agency's Basic Training Program at the FLETC, and whose employment was terminated for having failed the push-up requirement in the FGS. The AJ also concluded that Complainant was unable to represent the interests of women who failed the PTF-1 and the PTF-2. Regarding numerosity, the AJ found that, for the two-year period beginning April 2013 to June 9, 2015, of the 374 women who progressed to the FGS, only four, including Complainant failed the push-up portion. Accordingly, the AJ found that four was too small a number to meet the numerosity requirement to support a class-action complaint, citing to Commission cases in which 20 to 30 class members were deemed not numerous enough. CONTENTIONS ON APPEAL Complainant contends that the AJ erred in denying class certification by concluding that the commonality, typicality, and numerosity criteria were not satisfied. She asserts that the three class agents present a common challenge to a specific policy regarding CBPO physical requirements regarding push-ups and are common to all individuals seeking a CBPO position. Complainant further contends that their claims are also typical of the class as a whole because each was required to perform the same push-up tests as every other woman seeking permanent employment as a CBPO. If they failed to perform the required number of push-ups, they were terminated from consideration to serve as permanent CBPOs. Complainant asserts that the AJ erred by determining that minor distinctions among the class members defeated commonality and typicality because different women candidates succeeded or failed at different stages of the three-stage series of push-up requirements. She also asserts that these criteria are met because not one woman in the prospective class is able to attain a permanent CBPO position unless she can attain the scores for each of the three push-up tests. Regarding numerosity, Complainant argues that the AJ erred by focusing only on the number of women who failed the FGS test rather than encompassing the whole series of push-up tests. Noting the addition of the two class agents, Complainant asserts that the AJ denied her motion to compel discovery regarding all women candidates and that the AJ's finding that Complainant had no commonality or typicality with women who failed PTF-1 and PTF-2 was now cured by the addition of the two class agents. Complainant maintains that she, CA-2, and CA-3 failed to perform the required number of push-ups and that each had their candidacies for permanent CBPO positions derailed by the Agency's series of push-up tests. Complainant avers that information provided by the Agency in pre-certification discovery indicates that hundreds of women seeking permanent CBPO positions have been disqualified as a result of the push-up requirements. Since the new policies were implemented in October 2009, at least 500 women failed the PFT-1 push-up test, at least 50 failed the PFT-2 test and at least nine failed the FGS push-up test. During the time period 2012-2014, Complainant asserts that, out of 2,323 applications by women for permanent CBPO positions, over 16.9 percent were disqualified because of the push-up requirements. Complainant further asserts that during that time period, Agency test results data show that over 360 women failed the PFT-1 push-up test, 24 failed the PFT-2, and at least seven failed the FGS push-up test. During the same time frame, only 237 of 21,977 or 1.1 percent of applicants who were men were disqualified by the push-up tests. Complainant asserts that the test data demonstrate that a woman seeking a permanent CBPO position was over 16 times more likely to be disqualified by the push-up tests. Agency's Contentions The Agency argues that the AJ correctly denied class certification because Complainant failed to satisfy class-certification criteria. Addressing commonality and typicality requirements, the Agency asserts that commonality and typicality are not satisfied by the mere fact that there are women taking the physical fitness tests. The Agency asserts that a class that mixes the three tests together does not have the requisite commonality and typicality requirement because each test had different overall requirements, was designed to achieve different goals, was administered differently, and was conducted at a different point in the hiring process while the FGS was administered after more than 75 days of training. Each test required a different number of push-ups. The Agency urges that, given these distinctions, the facts do not establish a common injury, nor does the complaint include a common contention that would be capable of class-wide resolution. Addressing the class requirement of numerosity, the Agency asserts that a class of four women who failed the FGS push-up requirement was not sufficient to satisfy this criterion. The Agency asserts further that, over the course of two years, 374 Trainees who were women had taken the FGS test and only four, including Complainant, failed the push-up portion. The Agency argues that Complainant's submission of two additional proposed class agents should not be considered because they were untimely and improperly raised. The Agency also contends that the addition of the class agents would be an exception to the general rule that the Commission does not normally consider new evidence unless there is a showing that such evidence was not reasonably available, which Complainant has not done. The Agency contends that because the two class agents had not engaged in EEO counseling and their claims differ from those raised by Complainant in that their claims are related to the PFT-1 and the PFT-2 and their claim did not involve termination during probationary employment, the claims raised are new and should be barred. The Agency also asserts that the addition of the two class agents does not establish commonality, typicality, or numerosity. The Agency argues that there was no common contention or common injury. The two proposed additional class agents failed two different tests and the tests were administered by different individuals at different places and at different times. They also failed two different tests that Complainant passed. ANALYSIS AND FINDINGS Addition of Class Agents The Commission's regulations require that, as with an individual complaint, an employee who seeks to represent a class of employees must seek counseling and undergo pre-complaint processing in accordance with § 1614.105. 29 C.F.R. § 1614.204(b). The record establishes that it was not until November 3, 2015, after the AJ's October 7, 2015, denial of class certification, that the Agency received a letter from Complainant requesting that a second class agent (CA-2) be included as an additional class agent because CA-2 did not pass the PFT-1 on February 13, 2013. After the Agency had issued its November 9, 2015, decision fully implementing the AJ's October 7, 2015 decision, Complainant sent another letter on November 13, 2015, to the Agency requesting the addition of a third class agent (CA-3) because she did not pass the PFT-2 on July 31, 2013. In the instant appeal, it is not apparent from the record that the CA-2 and CA-3 were counseled. The first request to be added as a class agent came after the AJ had made his decision and the second request came after the Agency had adopted the AJ's decision. Under the circumstances of this case and in the interest of judicial economy, we add the class agents. Both CA-2 and CA-3 alleged a common injury, failure to pass the push-up requirements resulting in their inability to advance towards permanent employment.2 In addition, the record reflects that, from the beginning, it has been the push-up tests as a whole that are being challenged. In her complaint, Complainant sought relief in the form of adjustment to the physical testing. Further, the record contains data concerning the performance of women at each stage of the process. The record is not limited to data for the FGS, but also contains data for the PFE-1 and the PFE-2. In addition, in Complainant's Notice of Class Complaint, she specifically alleged that the Agency's push-up requirements had a disparate impact on women. In Complainant's Motion for Class Certification, she stated that hundreds of women failed the push-up tests. The record also contains articles regarding how various state police departments and other federal agencies, including the Federal Bureau of Investigation, the U.S. Coast Guard, the U.S. Marshals Service, and the Navy, have approached physical fitness tests that are required to be taken by women and men. The Agency is claiming that the addition of the two class agents and their affidavits is new evidence and should not be considered. The addition of the two and their affidavits simply add the names of two individuals who failed the push-up tests at different steps. Even were we to decide that the evidence is not new, the Commission can exercise its discretion to consider such evidence. The record before us establishes that the interests that the two additional class agents represent were part of the evidentiary record before this appeal. Class Action 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." Gen. Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982). 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. This section, which is an adoption of Rule 23(a) of the Federal Rules of Civil Procedure, provides that the agency may reject a class complaint if any one of these prerequisites is not met. See 29 C.F.R. § 1614.204(d)(2). The class agent, as the party seeking certification, bears the burden of proof, and it is her obligation to submit sufficient probative evidence to demonstrate satisfaction of the four regulatory criteria. See Browder et al. v. U.S. Postal Serv., EEOC Appeal No. 0120061423 (Mar. 12, 2009). 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). When alleging a claim of "across the board" discrimination, allegations of specific discriminatory treatment, absent evidence of some common policy or practice, such as biased testing procedures or proof of an entirely subjective decision-making procedure, do not support class certification. See id, at 159 n. 15. Commonality and Typicality In addressing a class complaint, it is important to resolve the requirements of commonality and typicality prior to addressing numerosity in order to "determine the appropriate parameters and the size of the membership of the resulting class." See Moten v. Federal Energy Regulatory Comm., EEOC Request No. 05960233 (Apr. 8, 1997) (citing Harris v. Pan American World Airways, 74 F.R.D. 25, 45 (N.D. Cal. 1977)). The purpose of the commonality and typicality requirements is to ensure that a class agent must "possess the same interests and suffer the same injuries" as unnamed class members. Falcon, 457 U.S. at 156. 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. Generally, this can be accomplished through allegations of specific incidents of discrimination, supporting affidavits containing anecdotal testimony from other employees who were allegedly discriminated against in the same manner as the class agent, and evidence of specific adverse actions taken. Belser v. Dep't of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001) (citing Mastren v. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993)). Mere conclusory allegations, standing alone, do not show commonality. Garcia v. Dep't of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003) (citing Mastren, EEOC Request No. 05930253). "Factors to consider in determining commonality are whether the practice at issue affects the whole class or only a few employees, the degree of local autonomy or centralized administration involved, and the uniformity of the membership of the class, in terms of the likelihood that the members' treatment will involve common questions of fact." Mastren v. U.S. Postal Serv., supra. Typicality, on the other hand, requires that the claims or discriminatory basis, of the class agents be typical of the claimed bases of the class. A class agent must be part of the class she seeks to represent, and must "possess the same interest and suffer the same injuries" as class members. Falcon, 457 U.S. at 160. 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 agent's claims. Conanan v. Federal Deposit Insurance Corp., EEOC Appeal No. 01952486 (Jan. 13, 1998) (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 159, n.15; 160. We find, contrary to the AJ and the Agency's contentions, that the commonality and typicality requirements have been established. Here, Complainant challenges an agency policy, which contains qualification standards, as disparately impacting women. She identified the Agency's policy of administering a set of tests that requires that a fixed number of push-ups be performed in a certain amount of time at three points in the process. The tests include detailed written instructions and procedures for conducting the push-up tests. Push-up requirements are uniform, standardized, and documented in the Agency's policies. Failure to perform the number of push-ups in the required amount of time at any stage in the process results in removal from consideration for employment as a CBPO. That a woman could fail the push-up tests at any one of the steps does not deprive the class of commonality because the push-up requirement is the qualification standard at the center of the complaint that a policy disparately impacts women.3 We also note that Complainant was able to advance to the third step, having not failed the first two steps that led to her complaint, and she was given a conditional offer of employment, unlike those women who did not reach the third step. We find, however, that the existence of these facts as it pertains to Complainant does not make Complainant's claim uncommon to the class. The common injury is that in failing to pass the push-up tests, the class members were ultimately barred from permanent employment as a CBPO.4 The class agents have also established that their individual claims are typical of the class as a whole. Each class agent was required to perform the very same push-up tests as every other woman seeking permanent employment as a CBPO. Each class agent failed. When they failed, their failure ended their progression towards becoming employed as a CBPO. The Commission therefore concludes that the criteria of commonality and typicality have been satisfied. Numerosity In focusing only on the four women who failed the FGS test from April 2013 to June 2015, the last of the push-up tests, the AJ determined that Complainant failed to establish numerosity. However, when the complaint is correctly viewed as encompassing the multistage push-up test requirement as a whole, the class satisfies the numerosity requirement. "[T]he 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." Tschappat v. Dept. of Labor, EEOC No. 07A40074 (2005). Over 12,000 women have had to perform the Agency's push-up tests. See Ex. 4 & Ex. 5. During the time period 2012-2014, over 2,100 women were required to perform the push-up tests and over 350 failed.5 Adequacy of Representation We need not address the class requirement that the class agent or class representative must "fairly and adequately protect the interest of the class." 29 C.F.R. § 1614.204(a)(2)(iv); Hadnot v. Dep't of Housing and Urban Dev., EEOC Request No. 05940202 (Nov. 10, 1994). The Agency adopted the AJ's conclusion that the law firm representing Complainant established its class action credentials and consequently was well qualified to represent the interests of the class. We see no reason at this time to disturb the conclusion that the adequacy of representation requirement was met. In sum, we conclude that the AJ erred in not certifying the class. Complainant has challenged a qualification standard in an Agency policy as having a disparate impact on women. A straightforward, class-wide analysis of liability is the most efficient and effective way to review the alleged sex discrimination resulting from the Agency's uniform, standardized series of the multistage push-up qualification standard. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the finding of the Commission that the criteria for class certification have been met.6 On remand, the assigned AJ shall afford the class agents the opportunity for any additional discovery necessary to ensure the class maintains certification and appropriate class definition. ORDER The class shall be defined as all women who were required to take PCE-1, PCE-2, and the FCS and failed to pass the push-up qualification standard at any stage. The Agency shall: 1. Notify potential class members of the accepted class claim within fifteen (15) calendar days of the date this decision becomes final, in accordance with 29 C.F.R. § 1614.204(e). 2. Forward a copy of the class complaint file and a copy of the notice to the Hearings Unit of the Miami District Office within thirty (30) calendar days of the date this decision becomes final. The Agency must request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with 29 C.F.R. § 1614.204(f). The Agency is further 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 of the Agency's actions. 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 June 1, 2016 __________________ 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 Both CA-2 and CA-3 submitted affidavits in support of their requests to be added. 3 Under the disparate impact theory of discrimination, a complainant has to establish that an Agency policy or practice, while neutral on its face, disproportionately impacts members of the protected class. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988). 4 The Commission has also expanded the definition of a class on appeal from an AJ's certification decision. See Byrd v. Dep't of Agriculture, EEOC Request No. 05900291 (May 30, 1990). 5 We note that the record is not clear as to how many women who eventually passed the push-up tests may have failed the test previously. 6 Even after a class is certified, the AJ retains the authority to redefine a class, subdivide a class, or recommend dismissal of a class if it becomes apparent that there is no longer a basis to proceed with the class complaint as defined. See Cyncar v. U.S. Postal Serv., EEOC Appeal No. 0720030111 (Feb. 1, 2007) req. for recon. den'd, EEOC Request No. 0520070348 (May 1, 2007) (citing Hines, et al. v. Dep't of the Air Force, EEOC Request No. 05940917 (Jan. 29, 1996)). The class also, for example, can be subdivided if the interests of class members conflict. See Ables, et al, Edmondson, et al v. U.S. Postal Serv., EEOC Appeal No. 01984749 May 6, 2000); Byrd, supra, EEOC Request No. 05900291 (May 30, 1990)(class representative should have no conflicts of interest with the class). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01201-0714 2 0120160714