01a24278
09-14-2004
Carol A. Clopton, et al. Complainant, v. Michael Leavitt, Administrator, Environmental Protection Agency, Agency.
Carol A. Clopton, et al. v. Environmental Protection Agency
01A24278
September 14, 2004
.
Carol A. Clopton, et al.
Complainant,
v.
Michael Leavitt,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A24278
Agency No. 2000-0096-R7
Hearing No. 280-A0-4324X
DECISION
Complainant, the putative class agent, timely initiated an appeal
from the agency's July 1, 2002 final order dismissing both her class
complaint and her individual complaint, which allege unlawful employment
discrimination on the basis of age (over 40 years old), in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On July 20, 2000, complainant and a co-worker, both GS-13 Grant
Specialists in the agency's Region VII Planning and Management Division,
located in Kansas City, Kansas, jointly filed a complaint claiming
discrimination on the basis of age. Specifically, complainant claimed
that the agency offered certain developmental and career enhancing
opportunities to a group of 52 predominately younger employees hired in
Region VII in 1998, but that it failed to offer these career enhancing
opportunities to its predominately older senior level Region VII
employees (over 40 years of age).<1> In particular, complainant claimed
that the agency failed to afford senior staff with the opportunity to
participate in rotation assignments to other divisions in Region VII,
whereas participation in a rotation assignment program is an integral
part of the training program for the employees hired in 1998.<2>
Furthermore, complainant claimed that the detrimental effect of this
practice is compounded by an unwritten policy that requires a senior
level employee to identify a co-worker or co-workers to take over his/her
work when requesting a rotation assignment. Complainant argued that
because of the nature of the work performed by �specialists,� such
as herself and the co-complainant, this is essentially impossible.
Complainant claimed that this same unwritten policy encourages the
career enhancement of the 52 newer employees, to include a fast track for
promotion; however, the unwritten policy does not take a similar interest
or action on behalf of its older senior employees. Complainant claimed
that as many as 400 Region VII employees are adversely affected by the
agency's practice, consisting of the unwritten rotation assignment policy
and preferential treatment of the 52 newer employees, warranting a class
action complaint.
The agency forwarded the complaint to the EEOC's St. Louis District
Office for a determination regarding class certification. On June 1,
2002, the Administrative Judge (AJ) issued a decision recommending that
the class complaint be dismissed on the grounds that it did not meet the
requirements for class certification. Specifically, the AJ found that
while the complaint satisfied the commonality requirement, it failed
to satisfy the remaining three criteria of numerosity, typicality,
and adequacy of representation as set forth at 29 C.F.R. � 1614.204.
First, the AJ determined that �commonality� was satisfied because a
readily identifiable employment practice had been identified, i.e.,
the disparate impact of the �unwritten policy� described by complainant,
which effectively prevented senior staff from participating in rotation
assignments. However, the AJ next determined that complainant did not
satisfy the typicality requirement because she failed to present any
evidence that she had ever requested a rotation assignment that the
agency denied. The AJ indicated that a class agent who suffered no
injury cannot satisfy the typicality requirement.
Regarding numerosity, the AJ defined the class as those Region VII
employees over the age of 40 who are in positions so specialized that
no other employee is available to assume his or her duties while the
specialized employee rotates to a different assignment. The AJ further
found that this number must be further limited to those Region VII
employees over the age of 40 who requested a rotation assignment which
the agency denied. The AJ indicated that as evidence of numerosity,
complainant declared that the agency's �Rotational Opportunity Assignment
Program,� covers an indeterminable number of employees, and that the
class, though still being developed, should consist of significant
numbers, potentially up to 400 employees. However, the AJ found that
despite ample time (since April 2000), complainant submitted no names of
additional class members, exclusive of herself and the co-complainant.
Furthermore, the AJ determined that to the extent that other complainants
existed, joinder would not be difficult. The AJ found that these
individuals could be easily identified from employment records and
that they worked in a defined geographical area. Accordingly, the AJ
concluded that complainant failed to satisfy the numerosity requirement.
Regarding adequacy of representation, the AJ noted that prosecution of a
class action complaint is both complex and expensive. The AJ found that
the record failed to establish that the class agent either appreciated
this complexity or had access to adequate resources to pursue the matter.
Additionally, the AJ questioned whether complainant had the ability to
represent the class as reflected by her cursory response describing her
abilities to do so, and found that the record failed to reflect that
the class would be represented by legal counsel.<3> Accordingly, the
AJ concluded that complainant failed to satisfy this fourth requirement
as well.
Finally, in addition to dismissing the class complaint for failing to
satisfy typicality, numerosity, and adequacy of representation, the
AJ indicated that the agency must notify the class agent regarding the
processing of the individual complaint.
In its final order, the agency implemented the AJ's decision rejecting
the class complaint pursuant to 29 C.F.R. � 1614.204. Additionally,
the agency determined that based upon the AJ's finding that complainant
had not been �injured,� it dismissed her individual EEO complaint for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
On appeal, complainant argues that the AJ erred in finding that she
did not satisfy the typicality requirement. Complainant argues,
in pertinent part, that the agency previously denied her request
for a rotation assignment in 1997, and that she is part of the class
adversely impacted by the preferential treatment of the younger newly
hired employees. Regarding numerosity, complainant argues that the AJ
erred in limiting the class to those senior staff members who could not
find a replacement to assume their duties, and that further discovery
would have allowed her to gather additional evidence of numerosity.
As to adequacy of representation, complainant avers that the AJ had not
informed her of the need for an attorney, but that she was now in the
process of obtaining legal counsel. Complainant additionally argues
that the AJ inappropriately assumed that she did not have the financial
status to cover the expenses to pursue the complaint. Complainant further
argues that the AJ's findings and conclusions reflect bias in favor of
the agency, and requests that the class complaint be reinstated.
In response, the agency argues with regard to numerosity that
notwithstanding the AJ's definition of the class, complainant could only
identify two potential class members (herself and the co-complainant),
which is insufficient to establish numerosity. Regarding typicality, the
agency avers that complainant submits evidence of a rotation assignment
request denied in 1997, for the first time on appeal. The agency argues
that this information was previously available, and should not now be
considered. Moreover, the agency notes that because the denial occurred
in 1997, it must be deemed untimely because of her April 2000 initial
EEO Counselor contact. Finally, the agency asserts that complainant
failed to present evidence that she has, in fact, retained competent
counsel to represent the class, such that the adequacy of representation
requirement is not satisfied.
Class Complaint
Commonality and Typicality
An individual seeking to maintain a class action is required to meet the
"prerequisites of numerosity, commonality, typicality, and adequacy of
representation" set forth at 29 C.F.R. � 1614.204(a)(2). 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). 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 Commission, EEOC Request No. 05960233 (April 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 class agents possess the same interests and suffer the same injury
as the members of the proposed class. See General Telephone Company
of the Southwest v. Falcon, 457 U.S. 147 (1982). In application, the
commonality and typicality prerequisites tend to merge and are often
indistinguishable. Id. Commonality requires that there be questions of
fact common to the class. The class agent must, therefore, establish
some evidentiary basis from which one could reasonably infer the operation
of an overriding policy or practice of discrimination. This can be done
through allegations of specific incidents of discrimination, supporting
affidavits containing anecdotal testimony from other employees against
whom an employer allegedly discriminated in the same manner as the class
agents, and evidence of specific adverse actions taken. See Mastren
v. United States Postal Service, EEOC Request No. 05930253 (October
27, 1993).
As an initial matter, we find that neither the AJ nor the agency properly
framed complainant's claim. Specifically, we find that the practice at
issue, as identified by the AJ, is not limited to the agency's alleged
unwritten policy requiring senior specialists to backfill their positions
while serving in a rotation assignment. Instead, we determine that the
�practice� at issue is the agency's failure to offer its career (and
typically older) Region VII employees the same opportunity to participate
in the six-week rotational assignment program provided as training to
the 52 newly hired, predominately younger, employees, who do not have to
�backfill� their positions while on assignment.<4> Complainant contends,
in essence, that she, and all �career� employees, especially specialists,
in Region VII are adversely impacted by this practice because rotational
assignments, particularly the rotation assignment program offered to
the 52 new employees, is significantly career enhancing, regardless of
position or career tract. Complainant avers that this experience gives
these 52 predominately younger employees a critical unfair advantage
over older employees, especially regarding promotions.
Therefore, in framing the claim in this manner, we find that the requisite
harm arises because of the agency's purported failure to offer the same
rotational assignment opportunity to its predominately older �career�
employees in Region VII, as provided to the 52 newly hired employees.
Contrary to the AJ's determination, we find that complainant need
not additionally show that she requested, and was denied a rotation
assignment, in order to demonstrate an actionable harm in this case,
either for the purpose of establishing typicality as to the class
complaint, or �stating a claim,� as to her individual complaint.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Moreover, in considering the claim as now framed, we find that the AJ
improperly defined the class as those employees over the age of 40 who
are in positions so specialized that no other employee is available
to assume their duties. Instead, we find that the �practice� at issue
concerns the agency's rotation assignment program for the 52 newly hired,
predominately younger employees, which does not have a requirement to
�backfill� positions. Because the agency purportedly did not afford this
same opportunity to its Region VII predominately older senior employees,
we determine that the class should be defined as all Region VII employees
over the age of 40. In this regard, we note that the record reflects
that the 52 new employees were slated to eventually fill a variety of
positions, not only specialists positions, so that the class may not be
properly limited to only Region VII specialists over the age of 40.
Furthermore, we also find that the class should not be limited to those
members who could show that they requested a rotation assignment which
the agency denied. Specifically, we find that because the practice at
issue concerns only the rotation assignment program offered exclusively
to the 52 new employees, and not any and all requests for rotation
assignments made by senior staff. Therefore, we find that the class in
this case should not be limited to only those older career employees who
requested and were denied rotation assignments, and this should not be
a requirement for class membership.
Finally, based on the above re-framing of the claim, and the re-stated
definition of the class, we find that complainant has not only established
commonality with the other older senior employees over the age of 40 in
Region VII, but typicality as well. Specifically, we find that these
certification requirements are established because the entire class,
consisting of all senior employees in Region VII over the age of 40,
are adversely impacted by the same �practice� (thereby establishing
commonality); and, these class members all suffer the same harm, i.e.,
loss of a significant career enhancing opportunity, to the undue advantage
of the 52 younger newly hired employees (thereby establishing typicality).
Accordingly, for the above stated reasons, we find that the AJ and
agency erred in framing the claim, and defining the class, and also
erred in concluding that complainant failed to establish the typicality
requirement. Based on our re-framing of the claim, and identification
of the class, we find that complainant establishes both commonality
and typicality.
Numerosity
Numerosity requires that the putative class be so large as to make
joinder impractical. See 29 C.F.R. � 1614.204(a)(2)(i). No set
number is required, and each case is evaluated on its own circumstances.
See General Telephone Company v. Equal Employment Opportunity Commission,
446 U.S. 318, 330 (1980). Considerations include the number of class
members, the location and dispersion of class members, the ease of
identifying class members and any other factors which would indicate a
substantial hardship in the class members participation in the complaint.
See Martin v. U.S. Postal Service, EEOC Request No. 05920003 (December
19, 1991). The exact number of class members need not be shown prior to
certification, but some showing must be made of the number of individuals
affected by the alleged discriminatory practices who therefore may assert
a claim. See Moten, supra.
Regarding numerosity, we note that the AJ and agency ultimately find that
complainant fails to establish numerosity because she can identify, by
name, only two potential complainants, herself and her co-complainant.
However, in her decision, the AJ acknowledges that Region VII consists
of 566 employees, and that 425 of these are over the age of 40.
Accordingly, with reference to the above cited legal standard, and
based on the re-framed claim, and re-defined class, as described above,
we find that complainant establishes the element of numerosity.
Adequacy of Representation
Adequacy of representation �is perhaps the most crucial requirement
because the judgment will determine the rights of the absent class
members.� See Bailey, et al. v. Department of Veterans Affairs, EEOC
Request No. 05930156 (July 30, 1993). EEOC Regulation 29 C.F.R. �
1614.204(a)(2)(iv) requires that the agent of the class, or, if
represented, the representative, will fairly and adequately protect the
interests of the class.
In this case, the AJ determined that complainant could not financially
pursue a class action complaint, and that she is otherwise not able to
fairly and adequately represent the class, especially in that she lacks
the necessary legal expertise to do so. However, on appeal, complainant
disputes the AJ's finding that she cannot procure adequate financing,
and avers that she is in the process of obtaining expert legal counsel.
The Commission has held that where the other certification requirements
have been met, the AJ may conditionally certify the class for a reasonable
period of time so that the class agent may secure adequate representation.
See Hines v. Department of the air Force, EEOC Request No. 05940917
(January 29, 1996). Therefore, based on our determination herein that
complainant established the elements of commonality, typicality, and
numerosity, we find that this case should be remanded, with instructions
to the agency to forward the case to the St. Louis District Office,
where the AJ should conditionally certify the class for a reasonable
period of time so that the class agent may secure adequate representation.
Conclusion
In conclusion, we find that the AJ improperly dismissed the captioned
class action complaint for failing to satisfy the requisite certification
criteria, and we VACATE the agency's final order implementing that
determination. The class complaint is REMANDED to the agency for further
processing, as set forth in the ORDER below.
Individual Complaint
Because of our determination herein, ordering that the class complaint
be conditionally certified by the AJ, we find that a determination on
complainant's individual complaint must be held in abeyance pending the
outcome of the class complaint. Therefore, we VACATE the agency final
order dismissing the individual complaint, and we REMAND the individual
complaint to the agency, and ORDER the agency to hold the individual
in abeyance pending the outcome of the certification determination on
the class complaint.
ORDER
The agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date that this decision
becomes final, the agency is ORDERED to transfer this case to the
St. Louis District Office, and to request an assignment to an AJ. The AJ
must conditionally certify the class complaint, for a reasonable time,
sufficient to allow the class agent to furnish evidence to establish
that she satisfied the adequacy of representation requirement, as set
forth in 29 C.F.R. � 1614.204(a)(2)(iv).
2. Upon the expiration of the time period established by the AJ, the
AJ must render a decision on the issue of class certification, either
certifying or dismissing the class complaint, for failing to satisfy
the adequacy of representation requirement.
3. The agency shall hold the individual complaint in abeyance pending
the outcome of the class action complaint, and timely send complainant
a written notice regarding this action.
Copies of all pertinent documentation verifying compliance with the
above actions must be sent to the Compliance Officer as referenced below.
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
September 14, 2004
__________________
Date
1The record variously shows the number of the newly hired group to
consist of either 48 or 52 employees. We find that the exact number is
not significant to our determination herein, and we will use the number
of 52, as claimed by complainant.
2According to the record, the 52 newly hired employees were to perform
a rotation assignment for a six-week duration in each of Region VII's
six divisions to familiarize them fully with the work and personnel of
Region VII.
3In his decision, the AJ indicated that complainant provided only a
�cursory� response to his inquiry asking her how she met the adequacy of
representation requirement, using the following reply from complainant
as an example: �I will fairly and adequately protect the interest of
the class during the processing of the complaint.�
4We note that complainant contends that because the newly hired employees
are not required to backfill their positions while on assignment, this
results in an additional hardship to the career employees who must
perform their duties in their absence.