07a40116
04-06-2006
Agency.
Doreen Amft, Sharon Graham, et al. v. Department of Transportation
(Federal Aviation Administration)
07A40116
04-06-06
.
Doreen Amft,
Sharon Graham,
Class Agents,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration)
Agency.
Appeal No. 07A40116
Agency No. 95-0012
Hearing No. 210-2004-00139X
DECISION
INTRODUCTION
The Department of Transportation (hereinafter referred to as the agency
or DOT) and Doreen Amft and Sharon Graham (hereinafter referred to
as the class agents or co-agents) timely initiated appeals from the
agency's final order concerning a class 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ) properly
determined that the subject class complaint should be certified because
it meets the basic elements of a class complaint pursuant to 29 C.F.R. �
1614.204.
BACKGROUND
On August 5, 1994, class agents, as co-agents, filed a formal class
complaint of discrimination on the basis of sex. In this complaint, the
co-agents alleged that the agency engaged in discrimination of a class
defined as �all women employed by the Federal Aviation Administration
(FAA) who were denied compensation under the Pay Demonstration Project
between 1989-1999.�
A. History of the Pay Demonstration Project
The record reflects that, in 1988, the public perception was that the
FAA did not have enough air traffic controllers to safely serve the
general and commercial air traffic throughout the United States. The FAA
was in fact experiencing difficulties with lower than normal staffing
at a number of complex air traffic control facilities in a variety of
position classifications including air traffic controllers, aviation
safety inspectors, engineers, and other similar positions. Due to
the low staffing levels, the agency did not permit employees to move
between facilities; annual leave was cancelled; high employee turnover
rates existed; and employees' morale was low. These difficulties were
most serious at the most complex air traffic facilities, referred to by
the agency as Level 5 facilities.<1> The record establishes that the
FAA had tried several methods to alleviate employee retention problems
at Level 5 facilities with only limited success.
For the above stated reasons, officials at FAA and DOT approached
officials at the Office of Personnel Management (OPM) about designing
a Pay Demonstration Project (the Project) for the FAA to test the
effectiveness of recruitment and retention of personnel through
pay incentives.<2> Unions representing FAA employees, including the
American Federation of Government Employees, the National Air Traffic
Controllers Association, and Professional Airways Systems Specialists also
participated in the development of the Project. The category of eligible
positions were identified as hard-to-staff, safety-critical positions.
Rather than operating as a cost-of-living allowance, the Project
was intended to: (1) stabilize employment at the target facilities;
(2) secure more experienced employees in safety-related positions;
(3) obtain higher levels of full-performance level employees; and (4)
recruit, retain, and motivate a well-qualified work force at hard-to-staff
facilities. The Project focused upon Level 5 facilities where there were
problems of recruitment and retention with critical and chronic staffing
shortages, and on employees in primary safety occupations or positions
essential to the operation of those facilities.
The facilities chosen for the Project were in the Los Angeles, New York
City, Chicago, and Oakland regions. Initially, the positions selected
for the Project included: Airway Facilities Sector Manager; Assistant
Sector Manager; Supervisory Computer Operator; Computer Operator;
Supervisory General Engineer; General Engineer; Supervisory Engineering
Technician; Engineering Technician; Mechanical Engineer; Supervisory
Electronics Engineer; Electronics Engineer; Supervisory Air Traffic
Control Specialist; Air Traffic Control Specialist; Aviation Cabin
Safety Specialist; Supervisory Aviation Safety Inspector; and Aviation
Safety Inspector. The position of Civil Engineer was later added with
OPM approval after implementation of the Project. Under the Project,
employees in the identified positions at the covered facilities were paid
a 20% bonus above their annual salaries. Once implemented, the Project
covered approximately 2,132 employees at an estimated projected cost in
excess of $20 million for each year, or in excess of $100 million should
the project continue in effect for the five year maximum span allowable
by 5 U.S.C. � 4703(b).
Prior to implementation of the Project, a public hearing was held in
Chicago on December 14, 1988. During the hearing, some provided testimony
that the inclusion of certain employees and the exclusion of others would
have a detrimental effect on the morale and productivity of the excluded
employees at the covered facilities. In pertinent part, testimony and
letters called for the inclusion of administrative and clerical employees,
and reflected that women primarily filled the excluded occupations.
The final plan for the Project was published in the Federal Register on
March 10, 1989, and became effective on June 18, 1989.
In 1994, when the Project was about to expire, Congress included a
provision in the Airport Improvement Program Temporary Extension Act of
1994, Public Law 103-260, section 401, entitled "Grandfather Provision for
FAA Demonstration Project" (the Grandfather Provision). The Grandfather
Provision specifically authorized payment retention allowances to those
employees covered by the Project. Unlike the original Project, under
the Grandfather Provision, the agency had no discretion in determining
how the rule was applied.
B. The Present Class Complaint
On October 13, 1994, the present class complaint was forwarded to an
AJ for a recommended decision as to an acceptance or dismissal of the
complaint as a class complaint. The assigned AJ dismissed the class
complaint sua sponte on the basis that the class agents failed to contact
an EEO Counselor in a timely manner. The agency fully implemented that
dismissal, and the class agents appealed the decision to the Commission
on May 18, 1995. The Commission, in EEOC Appeal No. 01954370 (October
28, 1997), found that the record lacked sufficient relevant evidence to
determine whether the class agents timely initiated EEO counseling or
whether any equitable circumstances warranted the tolling of the time
for doing so. Accordingly, the Commission vacated the dismissal and
remanded the matter for development of the record as to timeliness.
The agency resubmitted the complaint to the EEOC's Chicago District Office
in November 1997. On September 30, 1999, the assigned AJ dismissed
the complaint based on untimely EEO Counselor contact, and the agency
again issued a final decision, dismissing the complaint as untimely.
The co-agents again appealed the final decision. On June 14, 2001, the
Commission again vacated the dismissal and found that the class agents'
EEO Counselor contact was in fact timely because each pay check they
received since the Project began constituted a separate, actionable claim.
EEOC Appeal No. 01A00571 (June 14, 2001) (citing Bazemore v. Friday,
478 U.S. 385 (1986); Dale v. Small Business Administration, EEOC Request
No. 05980124 (July 10, 2000)). The complaint was remanded to the Hearings
Unit of the EEOC's Chicago District Office for further processing.
In January 2004, the matter was assigned to an AJ, who ordered the
parties to brief the issue of class certification. By decision,
dated May 25, 2004, the AJ found that class agents met the numerosity,
commonality, typicality, and adequacy of representation requirements.
In addition, applying the Supreme Court's holding in Railroad Passenger
Corp. v. Morgan, 536 U.S. 101 (2002), to determine the reviewable time
frame, the AJ defined the class as:
All female employees who held an administrative position assigned to one
of the FAA facilities identified as a participating facility (Los Angeles,
Oakland, New York, and Chicago) under the June 1989 Pay Demonstration
Project and who were entitled to an incentive pay during the period of
May 9, 1994 to June 22, 1994, if their position had been identified as
a position covered under the Pay Demonstration Project.
On July 2, 2004, the agency issued a final decision, stating that it
would not fully implement the AJ's decision. Both the agency and class
agents appealed the AJ's decision to the Commission.
C. Parties' Contentions on Appeal
On appeal, the agency alleges that the class complaint is barred because
class agents failed to exhaust their administrative remedies.<3>
The agency further argues that the doctrine of collateral estoppel
is applicable and bars this appeal as to timeliness. See Carter
v. Department of Transportation, EEOC Appeal No. 01951073 (May 1, 1995)
(applied reasonable suspicion standard, resulting in EEO Counselor contact
being deemed untimely). Moreover, the agency asserts that class agents
lack standing in that they have generalized grievances shared by all or
a substantially large class.
With respect to certification of the class, the agency contends that
the AJ erred in certifying the class because, while the numerosity
requirements were met, the class lacks commonality and typicality as
to the class members' positions. Specifically, the agency notes that,
of 52 class members identified, 20 position titles are represented,
with diverse functions at each facility. The agency further contends
that the co-agents cannot fairly protect the interest of the class with
commonality and typicality not met. It asserts that to analyze the
complaints properly would require position-by-position examination of
each facility's operations, needs, staffing, and the function of each
position as related to the facility. Alternatively, the agency contends
that sub-classes are more appropriate, and that the sub-classes could
consist of the 4 areas involved with discovery and pre-trial matters
coordinated under one district office. Finally, the agency maintains that
substantive issues raised in this appeal are governed by prior rulings in
Thomas v. Department of Transportation, EEOC Appeal No. 01945798 (December
12, 1996) (The Commission found that complainant failed to prove that the
Project had a disparate impact on female employees.); Stiles v. Department
of Transportation, EEOC Appeal No. 01945782 (December 12, 1996) (same).
In their cross-appeal, class agents contend that the doctrine of
continuing violation applies here. As such, the reviewable time frames
in the class definition should be expanded. They specifically note
that public policy favors a determination that EEO Counselor contact
is timely if it is made during the period of time that the agency is
engaging in the pay disparity. With respect to the agency's argument
that the doctrine of collateral estoppel applies here as to timeliness,
class agents assert that it does not apply because the parties and issues
in Carter, supra., are not the same, but rather involved different class
agents with different factual allegations. To the extent that the agency
asserts that the class agents do not have standing, the class agents
assert that they have Article III standing in that all class members have
suffered an actual economic loss as a result of the discrimination.<4>
Finally, they argue that the class complaint in Gregory, supra.,
is irrelevant because that class complaint was never certified.
See Hickerson v. Velsicol Chem. Corp. 121 F.R.D. 67,68 (ND Ill 1998)
(Prior to certification, �any dismissal would not have a res judicata
effect as to the absent punitive class members.�).
D. Commission's Interim Order
On May 17, 2005, the Commission issued an Interim Order in the
present matter. In that Order, we found that the evidence of record
was insufficient to allow a determination as to the implications of
the Commission decisions in Thomas and Stiles. Thomas, supra; Stiles,
supra. The Commission was troubled because the record in the present
case contains the same factual, as well as statistical evidence as found
in Thomas and Stiles. Accordingly, the Commission ordered the parties
to submit briefs showing whether the Commission decisions in Thomas and
Stiles are applicable to the present case.
The agency submitted a brief in response to the Order on June 27, 2005.
The agency re-argued that the doctrine of collateral estoppel is
applicable and bars this appeal as to timeliness. See Carter, supra.
It then briefed the issues and facts in Thomas and Stiles, asserting that
the substantive issues raised here are governed by these two cases.
Class agents asserted, among other things, that Thomas and Stiles are
of limited applicability here because they involved limited analysis of
individual litigants in circumstances and statistics at the Los Angeles
Center; they involved pro se class agents; and the Commission did not
find that discrimination could not be proven, only that the individual
complainant had failed to introduce the necessary evidence.
ANALYSIS AND FINDINGS
A. Timeliness
Applying the Supreme Court's holding in Morgan to determine the reviewable
time frame, the AJ found the period of May 9, 1994 to June 22, 1994 as the
relevant period for purposes of defining the present class. In Morgan,
the Supreme Court expressly relied on its statement in Bazemore v. Friday,
478 U.S. 385, 395 (1986), regarding each paycheck paid at a discriminatory
rate as an example of an actionable �discrete act or single occurrence,
even when it has a connection to other acts.� Morgan, at 111, 122
S.Ct. 2061 (internal quotation marks and citations omitted); see also
Hildebrandt v. Illinois Department of Human Resources, 347 F.3d 1014,
1028 (7th Cir. 2003); EEOC Compliance Manual "Threshold Issues Sect. 2-IV
Timeliness" (issued July 21, 2005)(Compliance Manual). The Court did
not characterize Bazemore as involving a �continuing violation� or as
embracing a continuing violation doctrine. Instead, the Court reaffirmed
the Bazemore statement that each discriminatory paycheck was a separate
discriminatory act. Morgan, at 2071. Therefore, reading Bazemore in
light of Morgan, as long as one incident of alleged disparate pay occurred
within the time limits for bringing the claim, the complaint should be
accepted for investigation. However, a complainant �cannot make timely
any prior time-barred discrete acts of discriminatory pay by filing within
the time frame of one discriminatory paycheck.� Hildebrandt, at 1027.
Based upon the foregoing, we find that the AJ properly found that each of
the class agents paychecks that included discriminatory pay was a discrete
discriminatory act, not subject to the continuing violation doctrine.
Under Morgan, the class agents cannot incorporate into their claim
any paychecks received prior to 45 days from their having received EEO
counseling.<5> Therefore, the period of May 9, 1994 to June 22, 1994
is the relevant period for purposes of defining the class. The class
shall remain defined as:
All female employees who held an administrative position assigned to one
of the FAA facilities identified as a participating facility (Los Angeles,
Oakland, New York, and Chicago) under the June 1989 Pay Demonstration
Project and who were entitled to an incentive pay during the period of
May 9, 1994 to June 22, 1994, if their position had been identified as
a position covered under the Pay Demonstration Project.
B. 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). Under
EEOC Regulations, a class complaint must allege that: (i) the class is so
numerous that a consolidated complaint concerning the individual claims
of its members is impractical; (ii) there are questions of fact common
to the class; (iii) the class agent's claims are typical of the claims
of the class; and (iv) the agent of the class, or, if represented,
the representative, will fairly and adequately protect the interests
of the class. 29 C.F.R. � 1614.204(a)(2). A class complaint may be
dismissed for failing to meet the above-listed requirements, or for any
grounds provided in 29 C.F.R. � 1614.107(a).
To merit class certification, a class agent must be part of the class she
hopes to represent, and must �possess the same interests and suffer the
same injuries� as unnamed class members. Falcon, at 156. In analysis,
the �commonality and typicality requirements tend to merge.� Id. at 157
n. 13. �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. United States Postal Service, EEOC Request No. 05930253
(October 27, 1993). Although they need not be identical, typicality
requires that the class agent's 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 Corporation, EEOC Appeal No. 01952486
(January 13, 1998) (citing Falcon, at 156). The overriding typicality
principle is that the interests of the class members must be fairly
encompassed within the class agent's claim. Falcon, at 159, n.15; 160.
Numerosity does not imply an absolute limit, but requires examination of
the specific facts of each case. See General Telephone Co. v. Equal
Employment Opportunity Commission, 446 U.S. 318, 330 (1980). In
addition to the number of class members, relevant factors include
geographic dispersion, ease with which the class may be identified,
the nature of the action, and the size of each claim. See Wood, Sr., et
al. v. Department of Energy, EEOC Request No. 05950985 (October 5, 1998).
Competency of counsel is particularly important for the protection of
the rights of class members. Foster v. Department of the Navy, EEOC
Request No. 05920483 (December 23, 1992).
The Commission finds that the AJ properly determined that the class
agents meet the numerosity, commonality, typicality, and adequacy of
representation requirements. Regarding numerosity, the record shows that
class agents instituted the complaint on behalf of 52 potential class
members in the Chicago region, and when the adversely affected females
from other regions are considered, the number rises in excess of 100.
As to commonality, the record reflects that the questions of fact are
common to all of the members. Moreover, class agents meet the typicality
requirement in that the claim of the class agents is identical to the
other class members in that the selection of positions to be covered was
allegedly biased against female employees. Finally, as the AJ noted,
the co-agents willingness to pursue this case for a decade, coupled with
their having retained a well-qualified attorney indicates that they meet
the adequacy of representation element.
We note that, on May 17, 2005, we issued an Interim Order requesting
that the parties submit briefs showing whether the Commission decisions
in Thomas and Stiles are applicable to the present case. Thomas,
supra; Stiles, supra. The Commission was disappointed with the briefs
submitted by both parties, as neither party addressed whether there is
a less restrictive alternative available which would reduce or eliminate
the disparate impact of the Project. See Griggs v. Duke Power Co., 422
U.S. 405 (1975). While we find that Thomas and Stiles are instructional,
we conclude that the record must be further developed in the present case.
Therefore, once it is determined that class agents can establish prima
facie case of disparate impact on the basis of sex, the AJ may focus
discovery and litigation on whether class agents can demonstrate that
criteria existed for the selection of positions for inclusion in the
Project which would serve the agency's legitimate needs without a
similar disproportionate impact on females. We note that class agents
must produce a criteria other than a blanket inclusion of all positions
at the facilities at issue. Thomas, supra; Stiles, supra.
CONCLUSION
Accordingly, the agency's final decision is VACATED, and the class
complaint remanded for further processing in accordance with this decision
and the Order below.
ORDER
The agency is ordered to perform the following:
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 Chicago 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).
3. Send a copy of all notices and letters ordered in provisions (1) and
(2) of this Order, as provided in the statement entitled �Implementation
of the Commission's Decision.�
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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
(R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which
to file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____04-06-06_____________
Date
1 Facility levels range from Level 1, the least complex which include
airports open only during daylight hours which operate without instrument
guided traffic, to Level 5, which include high volume radar intensive
airports.
2 Pursuant to the provisions of 5 U.S.C. � 4703(a), OPM was authorized
by the Congress to conduct and evaluate demonstration projects to
experiment with new and different personnel management concepts. The
projects could include compensation levels and incentives. No more than
ten demonstration projects could be in effect at the same time, with no
more than 5,000 participating employees in any one project.
3 Four years prior to the current class, Penelope Gregory et
al. v. Department of Transportation filed an identical class complaint
on the bases of sex, age, and race on behalf of 31 male and female Air
Traffic Assistants. Of 24 female Air Traffic Assistants, 13 appear on
both the Amft and Gregory counseling contacts. The agency asserts that
an AJ decision rejecting the class was never appealed.
4 A generalized grievance is one that is undifferentiated and common
to all members of the public and must be pursued by political rather
than judicial means.
5 We note that, if they prove discrimination, class agents may recover
for paychecks that included discriminatory pay for paychecks received
after May 9, 1994 and under the Grandfather Provision.