U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eura B.,1 Complainant, v. Richard Cordray, Director, Consumer Financial Protection Bureau, Agency. Appeal No. 0120161851 Agency No. CFPB20140048F DECISION Complainant, the putative class agent, filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated April 4, 2016, concerning her complaint of unlawful 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. 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 worked as a Consumer Response Specialist at the Agency's Consumer Response Division facility in Washington, DC. On November 12, 2014, Complainant filed a formal complaint alleging class-wide discrimination on the bases of race (African-American), sex (female), color (Not Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when the Agency: 1. Excluded women and minorities from training opportunities, details, projects, and other assignments; 2. Employed a Bureau-wide performance evaluation policy that disproportionately resulted in high performance ratings for White and male employees; 3. Employed a quota system to measure employee productivity that weighed investigation assignments without regard to complexity while assigning women and minorities the majority of the longer-term, more complex investigation 4. Failed to credit women and minorities for their experience on the same basis as White or male employees and failed to consider women and minorities for timely promotions and title changes on the same basis as White or male employees; 5. Failed to grant women and minority employees conversion from "straight term" or from "term to perm" to permanent status on the same basis as White or male employees; 6. Systemically paid women and minorities lower wages and/or denied minorities opportunities to increase their earnings; and 7. Retaliated against women and minority employees who complained of discrimination including by subjecting them to further discrimination, harassment, retaliation and constructively discharging or discharging them. On February 24, 2016, 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). The AJ found that Complainant failed to establish commonality and typicality between her circumstances and the members of the class she sought to certify, nor was she able to establish adequacy of representation. The Agency subsequently issued a final order fully implementing the AJ's dismissal of the class complaint. CONTENTIONS ON APPEAL On appeal, Complainant requests that the Commission reverse the Agency's final order implementing the AJ's decision denying class certification, and remand the matter to the Agency with instructions to certify the class. She asks the Commission to find that she met the commonality and typicality requirements, and declare that she would have had adequate representation. Additionally, she asks the Commission to order any other make whole relief as it deems necessary and proper. ANALYSIS AND FINDINGS Class Certification2 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. The AJ concluded that Complainant did nothing more than raise "broad, across-the-board allegations of discriminatory policies and practices covering a variety of personnel processes." The AJ further found that Complainant failed to offer any specifics or anecdotal evidence to establish even a minimal evidentiary basis for one to infer that the practices were the result of discrimination. In this case, we concur that Complainant has not established the requirement of commonality. The record reflects that Complainant has not explicitly shown that she has suffered the same harm as the other class members, but instead raises broad, across-the-board allegations of discriminatory policies and practices covering performance, evaluations, training opportunities, promotions, pay disparities, career conversions, and a hostile work environment. Additionally, the Commission notes that Complainant requested three extensions of time to file responses to the request for information from the AJ. Ultimately, the AJ made a decision that Complainant failed to comply with the requested time limits and as a result, declined to accept her submission. A review of Complainant's submission shows that they add nothing to Complaint's case. She submitted no additional specific information, affidavits or anecdotal evidence in support of her claims. In sum, 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 her individual claim is typical of the class as a whole, and instead made broad allegations against the Agency. She was unable to establish that each allegation happened to every alleged member of the class. In fact, the record reflects that in several instances employees were made whole with respect to certain allegations. The actions were taken on a case by case basis, and many of these resolutions distinguish one employees interest and injury from that of the other members of this putative class. Under these circumstances, it would be unfair or inappropriate to bind the class members to the outcome of Complainant's claim because her experience is not representative or typical of other putative class members. See Joel P. v. U.S. Postal Service, EEOC Appeal No. 0120120181 (Oct. 13, 2017) (citing 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. Adequacy of Representation Complainant and/or his representative must be able to adequately represent the class. To satisfy this criterion, Complainant or the 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 his 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. Competency of counsel therefore is particularly important for the protection of the rights of class members. See Foster and Starks v. Dep't of the Navy, EEOC Request No. 05920483 (Dec. 23, 1992). In the instant matter, the AJ determined that Complainant failed to meet the adequacy of representation prerequisite because of the representative's inability to demonstrate sufficient time and resources to conduct class litigation. We concur with this finding. As noted, Complainant was unable to comply with previous extensions of time for requests for information during the class certification period, and the reasons provided by the representative was that they were a small firm working on several cases at a time with limited resources. Under these circumstances, we agree with the AJ's decision that Complainant was unable to establish that the representative possessed sufficient ability to protect the interest of the class so that the claims would not fail for reasons other than merit. 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. CONCLUSION Based on a thorough review of the record and contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision finding that the class complaint should be dismissed because Complainant failed to meet the class certification requirements under 29 C.F.R. § 1614.204(a). ORDER To the extent it has not already done so, the Agency is directed to process Complainant's individual complaint in accordance with 29 C. F.R. § 1614.108. The Agency shall acknowledge to 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 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 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 (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: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations _6/15/18_________________ 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 The Commission notes that the instant decision only addresses the typicality, commonality and adequacy of representation prerequisites. The AJ found it unnecessary to address numerosity upon concluding that Complainant was unable to establish the commonality, typicality and adequacy of representation. Complainant did not raise the numerosity prerequisite on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161851 7 0120161851