01993626
04-26-2001
Bobby W. Kennedy, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Kennedy v. National Aeronautics and Space Administration
EEOC Appeal No. 01993626
04-26-01
.
Bobby W. Kennedy,
Complainant,
v.
Daniel S. Goldin,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No 01993626
Agency No. NCN-97-MSFC-B020
Hearing No.130-98-8025X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R.� 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Briefly, complainant and five other agency employees filed a class
complaint in which they claimed that, since 1988, the agency maintained
a policy of promoting younger people into senior technical and management
positions, resulting in systemic discrimination on the bases of age and
reprisal. The agency referred the class complaint to an administrative
judge (AJ), who recommended that the complaint be dismissed for failure
to meet any of the regulatory prerequisites required for class complaint
certification. The agency subsequently adopted the AJ's findings and
conclusions with respect to the class complaint, but also cited grounds
for dismissal of complainant's individual in its final decision. It is
from this decision that complainant now appeals.
ISSUES PRESENTED
Whether the AJ properly dismissed the class complaint for failure to
meet the regulatory prerequisites for certification;
Whether the class complaint should be dismissed for raising claims
pertaining to the processing of previous EEO complaints; and
Whether the agency properly dismissed complainant's individual complaint
for stating a claim already pending before the Commission, and for
stating a spinoff complaint.
BACKGROUND
Complainant filed a class complaint dated March 18, 1997. The class
complaint at issue in this case states, in pertinent part:
As one of the six class agents, [complainant] is answering questions
based on age, retaliation discrimination, and continuing policies,
practices and procedures of promoting young people into management and
senior technical positions over older people, starting in 1988, through
the present, and older white males being affected. . . The issues which
form the basis for this complaint are age, retaliation, and failure of
the agency to provide rulings on several complaints that have been filed
by the six [class agents].
The class complaint was forwarded to an AJ, who concluded that the
complaint should be dismissed for failure to meet any of the criteria
for certification and other procedural defects. In its final action, the
agency adopted the AJ's decision. In addition, it found that the class
complaint incorporated the following individual claims of discrimination:
Because of [complainant's] age, in retaliation for participation in prior
EEO activities, and due to policies and practices of promoting young
people into management and senior technical positions: (1) [complainant]
was not considered for the position of director of the MSFC EO Office
when the vacancy announcement was canceled following [complainant's]
interview for the position; (2) [complainant] was not selected for the
position of director of the MSFC EO Office; and (3) the agency has failed
to provide rulings on several of complainant's complaints.
The agency dismissed claims (1) and (2), for stating claims that were
already pending. It dismissed claim (3) on the grounds that it raised
claims about the processing of prior EEO complaints.
ANALYSIS AND FINDINGS
A class complaint may be dismissed because it does not meet the
prerequisites for a class complaint in 29 C.F.R. � 1614.204(d)(2),
or for any of the reasons listed in 29 C.F.R. � 1614.107.
Dismissal for Failure to Meet Prerequisites for Class Complaint
Certification
Class complaints must meet the certification requirements set forth in
our regulations before they can be processed on the merits. To meet these
requirements, complainant must show that: (1) the class is so numerous
that a consolidated complaint of the members of the class is impractical;
(2) there are questions of fact common to the class; (3) the claims of
the agent of the class are typical of the claims of the class; and (4)
the agent of the class, or his representative, will fairly and adequately
protect the interests of the class. 29 C.F.R. �1614.204(a)(2). If the
complaint fails to meet any of these prerequisites, it will be rejected.
Johnson-Feldman, et al. v. Department of Veterans Affairs, EEOC Appeal
No. 01953168 (August 7, 1997). For the reasons discussed below, we agree
with the AJ that complainant has not satisfied any of the prerequisites
for class complaint certification. We will discuss commonality and
typicality first, followed by numerosity and adequacy of representation.
Commonality
In assessing whether a class complaint meets the requirement of
commonality, a number of factors are considered, including: whether
the practice at issue affects a whole class or only a few employees;
the degree of local autonomy or central administration involved,
and the uniformity of the class membership. Mastren v. United States
Postal Service, EEOC Request No. 05930253 (October 27, 1993). In the
instant case, the class complaint states, �the [agency's] policies,
procedures and practices have affected the common group of employees
[who] have all filed age and retaliation complaints, [many of which]
have not been resolved.� From this passage and the counselor's report,
it appears that complainant seeks to include everyone who ever filed
a discrimination complaint at the facility. Such a group would be too
diverse to have common questions of fact. The AJ found that complaint was
a GS-14 engineer whose position was located in a particular laboratory
within the facility, while many of the proposed class members had
different duty stations, job classifications, position descriptions,
and duties, that they were subject to different personnel systems,
and that they were seeking different types of relief than complainant.
Typicality
The overriding principle with regard to typicality is that class agents
must possess the same interest and suffer the same injury as members of
the proposed class. Johnson-Feldman, et al.,
EEOC Appeal No. 01953168, citing General Telephone Co. of the Southwest
v. Falcon, 457 U.S. 147, 156 (1982) and East Texas Motor Freight System,
Inc. v. Rodriguez, 431 U.S. 395, 403 (1979). Complainant has not made
any showing that he had the same interests and suffered the same injuries
as employees outside of the particular laboratory in which he worked.
For example, he has not identified the job titles or duty stations of
anyone other than himself and the other class agents. Likewise, he has
not identified anyone who applied for promotion to senior positions,
but was not selected. While the lack of such specific and detailed
information is not necessarily fatal to a claim of typicality, the
record does not contain any other evidence that establishes the identity
of interest and injury between the class agent and prospective class
members that a typicality showing requires. Moreover, it is not clear
from the counselor's report, the formal class complaint, or any other
documentation, whether complainant's interests and injury were even the
same as those of the other class agents, beyond the fact that they all
filed prior EEO complaints.
Numerosity
There is no set number of class members required to satisfy the numerosity
requirement for certification. Johnson-Feldman, et al., EEOC Appeal
No. 01953168. Whether a proposed class meets the numerosity prerequisite
depends upon the particular circumstances involved. Id. In addition
to the number of potential class members, factors such as geographical
dispersion, the nature of the action, and the ease with which class
members can be identified are relevant to whether the numerosity
requirement has been met. Id., citing Mastren v. United States Postal
Service, EEOC Request No. 05930253 (October 27, 1993). In the case before
us, the AJ found that the class consisted of six individuals, all of whom
claimed to be class agents. Complainant told the EEO counselor that
there were a number of individuals, in addition to the class agents,
who were affected by the agency's processing of EEO complaints. The
counselor reported, however, that complainant had not identified any of
those individuals, either specifically or generally. The counselor also
noted that complainant based his assertion on an unidentified report that
the agency had received 365 EEO complaints and found discrimination in
only one. CR, pp. 5-6. Complainant has not provided any information
on whether any of the individuals who filed these complaints did so in
connection with the agency's promotion policies and practices. Thus,
the only members of the proposed class that can be readily identified
are complainant and the other class agents. A group of six complaints
can readily be consolidated.
Adequacy of Representation
The class representative should have no conflicts with the class and
should either have sufficient legal training and experience to pursue the
claim or designate an attorney with the requisite skills and experience.
Johnson-Feldman, et al., EEOC Appeal No. 01953168, citing Byrd, et al.,
v. Department of Agriculture, EEOC Request No. 05900291 (May 30, 1990).
In this case, complainant claimed that he and the other class agents had
sufficient training and experience to serve as class representatives
by virtue of having filed many individual pro se lawsuits alleging
discrimination. Complainant also stated that those who joined the class
would pay a proportionate share of the necessary legal expenses, and that
two public interest groups had expressed an interest in the case, and that
the class would hire an attorney. Complainant has not demonstrated,
however, that he and the other class agents had any experience in
actually prosecuting class complaints. He also has not shown that the
public interest organizations he referred to actually would take the case.
Most important, there has been no showing that complainant ever identified
an attorney with the necessary experience in class actions.
Dismissal For Stating A Claim of Dissatisfaction With Prior EEO Complaint
Processing
The agency is required to dismiss complaints, or portions thereof,
that allege dissatisfaction with the processing of a previously filed
complaint. 29 C.F.R. � 1614.107(a)(8). When read in conjunction with
the counselor's report, the complaint clearly raises issues concerning
the manner in which the agency processed prior complaints filed by
complainant and the other class agents. The counselor notes, for
example, complainant's allegation that, �he and a class of employees
are being adversely affected by [the agency's] . . .failure to process
complaints within the regulatory time frame and the significantly high
percentage of no-cause findings.� Counselor's Report (CR), pp. 3-4.
We therefore find that the agency properly dismissed that portion of
the class complaint raising claims involving the processing of prior
EEO complaints. We now turn to that portion of the complaint raising
claims of discriminatory nonselection.
Dismissal of Individual Complaint of Discriminatory Nonselection
An individual complaint that is filed before or after the class complaint
is filed and that comes within the definition of the class claim(s)
will not be dismissed, but will be subsumed within the class complaint.
EEO Management Directive 110, p. 8-4 (November 9, 1999). If the class
complaint is dismissed at the certification stage, the individual
complaint may still proceed, unless the same or another basis for
dismissal applies. Id. In this case, the agency dismissed complainant's
individual claims concerning his nonselection on the grounds that they
stated a claim that had already been decided by the Commission. See 29
C.F.R. � 1614.107(a)(1).
At the outset, we note that claims (1) and (2) constitute different stages
of the same selection process. Accordingly, claim (1) can be subsumed
into claim (2). According to the agency, the matters raised in this claim
were the same as those raised in Complaint No. 98-MSFC-A024. That case
was the subject of Kennedy v. NASA, EEOC Appeal No. 01986016 (July 13,
1999), in which complainant claimed that the agency discriminated against
him on the bases of age, race, national origin, physical disability,
and reprisal by not selecting him for the position of equal employment
manager on January 6, 1998. The agency dismissed that complaint and
the Commission affirmed.
In his initial interview with the EEO counselor concerning the instant
complaint, complainant reported that he had applied for the position of
EEO director, but that on January 6, 1997, the personnel office notified
him that the vacancy announcement had been canceled. He maintained
that the cancellation was based on his age and on his numerous prior
EEO complaints. CR p. 5. This action took place a year before the
nonselection at issue in Complaint No. 98-MSFC-A024. This complaint
therefore cannot be dismissed under 29 C.F.R. � 1614.107(a)(1).
Nevertheless, the agency may still dismiss complainant's individual
complaint under 29 C.F.R. � 1614.107(a)(3), on the ground that the matter
is pending before a United States District Court. On December 29, 1999,
Complainant filed Civil Action No. CV-99-PT-3452-M in the U.S. District
Court for the Northern District of Alabama. In Count VII of this civil
action, complainant specifically identifies the nonselection at issue
in the instant complaint, no. NCN-97-MSFC-B020. We therefore find that
the agency correctly dismissed the complaint, but in accordance with
subsection 107(a)(3), rather than 107(a)(1).
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final action
decision dismissing complainant's class complaint, and to affirm the
agency's dismissal of complainant's individual complaint involving his
nonselection for the position of EO director in January 1997.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
___04-26-01_______________
Date