01A20184_r
05-08-2003
Christina Fontana, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christina Fontana, et al. v. United States Postal Service
01A20184
May 8, 2003
.
Christina Fontana, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20184
Agency No. CC-021-0074-00
Hearing No. 160-A1-8105X
DECISION
Complainant, a part-time employee at the agency's General Mail Facility
(GMF) in Boston, filed a class complaint of employment discrimination
alleging harm on the basis of age in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On August 2, 2001, an EEOC Administrative Judge (AJ) issued a decision
dismissing the class complaint on the grounds that it did not meet
the numerosity requirement set forth in 29 C.F.R. � 1614.204(a)(2)(i).
On August 22, 2001, the agency issued a final action adopting the AJ's
decision not to certify the class. In its decision, the agency notified
complainant that her complaint was accepted as an individual complaint
of discrimination.
BACKGROUND
In her complaint, complainant alleged that all part-time distribution
clerks on Tour 3 in the agency's Boston GMF were discriminated against
on the basis of age when their positions were abolished by the agency.
Complainant listed eleven other class members in her formal complaint.
The agency produced its own list of employees affected by the abolished
positions. The agency stated that complainant and nineteen other Tour
3 part-time regular distribution clerks (PTRs) over the age of 40 were
informed on August 17, 2000, that their positions would be abolished
effective September 2, 2000. The agency noted that on August 18, 2000,
four Tour 3 positions were established and four of the excessed PTRs
were offered these positions.
In its �Opposition to Class Certification,� the agency argued that the
class complaint lacked numerosity. The agency stated that the putative
class includes just sixteen persons, not including the four persons who
were senior bidders on the four new PTR positions. The agency argued that
the size of this class is too small to justify certification. Further,
the agency argued that complainant failed to satisfy the commonality
and typicality requirements. Specifically, the agency claimed that
complainant cannot show that there is a discriminatory policy in
place since all twenty PTR positions on Tour 3 were abolished due to
automation in accordance with negotiated collective bargaining procedures.
The agency explained that the procedures at issue were applied to all
affected employees regardless of age.
In his decision regarding class certification, the AJ noted that
complainant claimed that twenty part-time distribution clerks on Tour
3 were being discriminated against on the basis of their age when their
positions were abolished by the agency. The AJ found that the class met
the commonality requirement in that all members of the class were affected
by a singular employment personnel decision and all members of the class
were over forty years of age and all held the same job occupation. The AJ
also found that typicality and adequacy of representation were satisfied.
However, the AJ denied certification on the grounds that the class
failed to establish numerosity. The AJ noted that the class �complaint
concerns a limited identifiable number of part-time distribution clerks[,]
employed within a small work area at the [a]gency's Boston GMF facility,
and involves a manageable number of employees,� such that consolidated
joinder of all class members as individual complainants �would not be
impracticable.� The AJ also noted that the class agent �even argues
. . . that the class is limited to the 16-20 identified class members
and that there are not other potential class members.�
On appeal, complainant argues that the putative class of twenty part-time
distribution clerks is sufficiently numerous to meet the certification
requirements. Complainant claims that consolidation of individual
complaints would be impracticable because each member of the class would
be required to file an individual complaint, which would entail multiple
filings, multiple discovery and potentially multiple adjudications.
ANALYSIS AND FINDINGS
The purpose of class 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) (citations omitted).
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). The agency may reject a
class complaint if any of the prerequisites are not met. See Garcia
v. Department of Justice, EEOC Request No. 05960870 (October 10, 1998).
When determining whether numerosity exits, relevant factors to consider,
in addition to the number of class members, include geographic dispersion,
ease with which the class may be identified, the nature of the action,
and the size of each claim alleged. See Wood, Sr., et al. v. Department
of Energy, EEOC Request No. 05950985 (October 5, 1998). While there is
no minimum number required to form a class, and an exact number need not
be established prior to certification, courts have traditionally been
reluctant to certify classes with less than thirty members. Mastren,
et al. v. United States Postal Services, EEOC Request No. 05930253
(October 27, 1993); Harris v. United States Postal Service, EEOC Appeal
No. 01994220 (March 14, 2002) (class of 30 members from the same facility,
in addition to 15 more identified on appeal, insufficient to establish
numerosity).
In the present case, the record reveals only, at most, twenty potential
class members who were allegedly affected by the abolishment of the
positions at issue. All twenty potential class members work in the
same facility. The class agent presents no evidence showing that it
would be impractical to consolidate the twenty individual claims. Thus,
we find that the class complaint fails to meet the numerosity requirement
set forth in 29 C.F.R. � 1614.204(a)(2)(i) and we find that the agency
properly dismissed the class complaint.
The agency has stated that it will be processing complainant's individual
complaint. The agency should also notify the other named members of the
class complaint that they may file individual complaints. If some of
the individuals file such complaints, then the agency should consider
consolidating all of the individual complaints pursuant to 29 C.F.R. �
1614.606.
CONCLUSION
The agency's final action to dismiss the class complaint and to continue
processing complainant's complaint as an individual complaint<1>
is AFFIRMED.
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 (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
May 8, 2003
__________________
Date
1The agency may wish to consider whether
complainant is alleging a disparate impact claim in her individual
complaint.