U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shad L.,1 Complainant, v. Richard Cordray, Director, Consumer Financial Protection Bureau, Agency. Appeal No. 0120162565 Agency No. CFPB20150012F Hearing No. 570-2015-00338X DECISION Complainant, the putative class agent, filed an appeal from the Agency's July 6, 2016, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented on appeal are whether the EEOC Administrative Judge (AJ) properly determined that the class complaint should not be certified on the grounds that it failed to meet the criteria set forth in the Commission's regulations at 29 C.F.R. § 1614.204(a)(2). 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 in Washington, DC. Complainant joined the Agency in September 2011, and was responsible for reviewing the regulatory compliance of large financial institutions in response to complaints filed against them. On July 25, 2014, Complainant filed a formal complaint alleging that the Agency had engaged in a pattern and practice of unlawful conduct against minority employees, and maintained policies and practices that had a disparate impact on these employees. Specifically, Complainant alleged that the Agency: (1) Employed a quota system to measure employee productivity that weighed investigation assignments without regard to complexity while assigning minorities the majority of longer-term, more complex investigations; (2) Excluded minorities from training opportunities that were regularly offered to white employees; (3) Employed bureau-wide performance evaluation policies that disproportionately resulted in high performance ratings for white employees and average (or lower) performance ratings for minority employees; (4) Failed to credit minorities for their experience on the same basis as white employees and failed to consider minorities for timely promotions and title changes on the same basis as whites; (5) Systematically paid minorities lower wages and/or denied minorities opportunities to increase their earnings; (6) Failed to grant minority employees conversions from "straight term" or from "term to perm" to permanent status on the same basis as white employees; and (7) Retaliated against minority employees who complained of discrimination including by subjecting them to further discrimination, harassment, retaliation, and constructively discharging or discharging them. On May 31, 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 that the class met the commonality and typicality requirements. The Agency subsequently issued a final order fully implementing the AJ's dismissal of the class complaint. Additionally, the Agency found that several of Complainant's claims should be dismissed as stating the same claims that were raised in previous complaints or as being untimely under 29 C.F.R. § 1614.107(a)(1).2 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. Alternatively, Complainant requests a remand to an AJ to conduct a pre-certification class discovery. Complainant contends that the Agency ignored record evidence and held him to an unreasonably high standard considering the unavailability of the information of useful information. Complainant's repeated requests to conduct pre-certification discovery were denied. Complainant submits that access to this information which was within the Agency's control would have enabled him to make a stronger evidentiary showing in support of class certification. ANALYSIS AND FINDINGS Class Certification The purpose of class action complaints is to economically address claims "common to [a] class as a whole . . . turn[ing] on questions of law applicable in the same manner to each member of the class." General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982); Mitchell, et al. v. Department of the Air Force, EEOC Appeal No. 01A41492 (Oct. 18, 2005); Mastren, et al. v. U.S. Postal Service, EEOC Request No. 05930253 (Oct. 17, 1993). EEOC regulations provide that a class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent are typical of the claims of the class; and (iv) the agent of the class, or if represented, the representative will fairly and adequately represent the interests of the class. 29 C.F.R. §1614.204(a)(2). The regulations further provide, at 29 C.F.R. § 1614.204(d)(2), that a class complaint may be dismissed if it does not meet the four requirements of a class complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. Commonality and Typicality3 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. We concur that Complainant cannot establish the requirement of commonality. The record reflects that Complainant cannot explicitly show that he has suffered the same harm as the other class members by raising broad, across-the-board allegations of discriminatory policies and practices. In his response to the request for information on class certification under the category of "questions of law or fact that are common to the class," Complainant offered nothing more than the general claim that all Consumer Response Specialists work within the same unit and were therefore harmed by the Agency's uniform performance management policies. No additional specifics information, affidavits or anecdotal evidence were offered in support of these claims. On appeal, Complainant offers 6 witness statements and a personal affidavit. While more specific than what Complainant previously offered, this information still did not identify an Agency practice or procedure that caused the same harm to a group of employees. We determine that Complainant has not established questions of fact common to the class, and therefore has not established the commonality perquisite. Likewise, we find that Complainant also failed to establish that his individual claim is typical of the class as a whole. As addressed in our commonality analysis above, Complainant made broad allegations against the Agency. Although Complainant listed four other employees who he believes were adversely impacted by the policies, he provides nothing more than their names - without more this is insufficient to establish typicality. Additionally, Complainant was unable to establish that each allegation happened to every alleged member of the class. In fact, the record reflects that in several of the instances involving performance ratings, adjustments were made and employees were made whole. The corrective actions were taken on a case-by-case basis, distinguishing one employee's 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 his 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. 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 (FedSEPS). 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 § 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 dismissals of claims 4 -13 are not at issue in the instant appeal. Complainant's appeal brief only addresses the denial of class certification as an issue, and this will be the only subject in the instant decision. 3 The Commission notes that the instant decision only addresses the typicality and commonality prerequisites. The AJ found it unnecessary to address the remaining class certification requirements upon concluding that Complainant was unable to establish the commonality and typicality prerequisites. Complainant does not raise the numerosity and adequacy of representation requirements on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162565 7 0120162565