01A03994
05-06-2003
Constance K. Throckmorton, et al., Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Constance K. Throckmorton, et al. v. Department of the Interior
01A03994
May 6, 2003
.
Constance K. Throckmorton, et al.,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A03994
Hearing No. 320-AO-8196X
DECISION
Constance K. Throckmorton and Kathryn M. Nichols (complainants) timely
initiated an appeal from a final agency decision (FAD) dated April 19,
2000, pertaining to their class complaint alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the reasons set forth below, the Commission finds that the class,
as defined herein, should be certified for further processing.
BACKGROUND
On January 18, 2000, complainants filed a formal complaint on
behalf of a class consisting of all female geologists (series 1350)
in the Denver commuting area, age 40 or over, who were involuntarily
separated or downgraded during a Reduction-in-Force (RIF) conducted in
October 1995. Complainants alleged that the Geological Division of the
U.S. Geological Survey, Department of the Interior, undertook this RIF.
Pursuant to 29 C.F.R. � 1614.204(d), the agency forwarded the complaint to
an Administrative Judge (AJ) for a determination of whether the complaint
should be accepted and the class certified. In a decision dated March
23, 2000, the AJ found that the proposed class should not be certified
because the agents (Throckmorton and Nichols) failed to establish that
their class complaint met the numerosity and adequacy of representation
requirements of 29 C.F.R. � 1614.204(a)(2).
The AJ found that the class consisted of 22 individuals at most. The AJ
concluded that complainants therefore did not establish that the proposed
class of female geologists 40 years or older was sufficiently numerous
to render a consolidated complaint impractical.
The AJ found that the commonality and typicality requirements were met and
that complainants provided sufficient specificity and detail to support
the factual basis for their allegations. He then concluded, however,
that the adequacy of representation requirement was not met, as the class
agents were also the class representatives and provided no information to
establish that they had formal legal training or experience in employment
discrimination law. The AJ concluded that the class complaint did not
meet the numerosity and adequacy of representation requirements and,
accordingly, disapproved class certification.<1>
The agency adopted the AJ's decision and the class agents appealed.
LEGAL STANDARD
The purpose of class action complaints is to economically address claims
�common to [a] class of a whole...turn[ing] on questions of law applicable
in the same manner to each member of the class.� General Telephone
Co. of 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. See 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)
(citing 29 C.F.R. � 1614.204(d)(2)). Further, a class complaint must
identify the policy or practice adversely affecting the class, as well
as the specific action or matter affecting the class agent.
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 the unnamed
class members. See Falcon, 457 U.S. at 156. As a practical matter,
the �commonality and typicality requirements tend to merge.� Id. at 157
note 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).
ANALYSIS AND FINDINGS
Numerosity
As noted above, the AJ concluded that the complaint satisfied the
commonality and typicality requirements, but determined that because
the class only involved, at most, 22 individuals, the complaint failed
to meet the numerosity requirement.
Pursuant to 29 C.F.R. � 1614.204(a)(2)(i), a class must be so numerous
that a consolidated complaint of the members of the class is impractical.
Although the Commission's requirements for an administrative class
complaint are patterned on the Rule 23 requirements, Commission
decisions in administrative class certification cases are guided by
the fact that the administrative complainant has not had access to
pre-certification discovery in the same manner and to the same extent
as a Rule 23 plaintiff would have. See Moten et al. v. Federal Energy
Regulatory Commission, EEOC Request No. 05910504 (December 30, 1991).
Moreover, the exact number of class members need not be shown prior to
certification. Id. The correct focus in determining whether a proposed
class is sufficiently numerous for certification purposes is on the
number of persons who possibly could have been affected by the agency's
allegedly discriminatory practices and who, thus, may assert claims. Id.
On appeal, complainants allege that had the agency provided them with
documentation they requested, they would have been able to identify all
the members of the class. In the formal complaint, complainants alleged
that their evidence, which illustrated that 22 women 40 years of age
or older, were downgraded or separated, �must be considered putative�
because the agency would not provide recent or confirmatory data.
They also noted, however, that �even if the numbers...change by one
or two with the acquisition of modified data from the [agency]...�
(emphasis added) disparate treatment would still be demonstrated.
Documents submitted by the agency to the EEO Counselor indicate that
there were 22 female geologists, 40 or over, separated or downgraded due
to the RIF. At no point, even when arguing that the insufficient data
was due to the agency's failure to provide information, did complainants
argue that the potential number of female geologists 40 years of age
or over who were downgraded or separated due to the RIF was more than
approximately twenty-four.
Although no set number of class members is required to meet the numerosity
prerequisite, generally courts are reluctant to certify classes with fewer
than 30 members. See Mastern et al. v United States Postal Service,
EEOC Request No. 05930253 (October 27, 1993). Complainants failed to
provide sufficient evidence that this proposed class of fewer than 30
members should be certified. Accordingly, even viewed in the light
most favorable to complainants, the AJ correctly determined that this
class, involving approximately 24 individuals, is insufficient to meet
the numerosity requirement. As the failure of the complaint to meet only
one of the criteria listed above is sufficient for rejection of the class
complaint, the AJ's failure to certify the class of female geologists,
40 years old or over, in the Denver commuting area, who were downgraded
or separated due to the October 1995 RIF was proper. See Mastern, supra.
We note, however, that on appeal complainants also argue that information
received after the AJ's decision indicates that the class should be
expanded to include both men and women geologists 40 years of age or
older in the Denver area, i.e. 74 known individuals. Complainants
contend that the class agents discussed with the EEO Counselor their
belief that geologists 40 and over were treated adversely in the RIF.
Complainants further contend that the class agents repeatedly requested
information from the agency about the identity, sex, age and position of
employees who were and were not adversely affected by the RIF, but that,
due to alleged privacy concerns, the agency never fully complied with
these information requests. Although the Commission will not consider
new evidence on appeal unless the evidence was not reasonably available
during the hearing process, here, complainants have met this standard.
See 29 C.F.R. Part 1614, Final Rule, Appeals. The record contains
numerous letters supporting complainants' contentions that they repeatedly
requested information concerning the make-up of employees affected by
the RIF, as well as other information necessary to fully support and/or
develop their claim, and that the agency failed to provide relevant
information. Moreover, on appeal, complainants provide a list of 74
geologists 40 years and over in the Denver area who were involuntarily
separated or downgraded due to the RIF, information that they allege was
received from a reliable and credible third-party after the AJ's decision.
The Commission has in the past expanded the definition of a class on
appeal from an AJ's certification decision. See Byrd v. Department of
Agriculture, EEOC Request No. 05900291 (May 30, 1990) (expanding class
certified by AJ to exclude only those female employees who qualified
for GS-475 positions under a previously used standard, as opposed to the
AJ's broader exclusion). Furthermore, a review of the record establishes
that it contains sufficient evidence on which to find that this expanded
class meets the commonality, typicality and numerosity requirements.
Complainants provided the names of 74 individuals who, prior to the
October 1995 RIF were geologists 40 years of age or older, in the Denver
commuting area, and were involuntarily downgraded or separated due to
the RIF. While the proposed class of female geologists discussed above
did not meet the numerosity requirement, as it numbered approximately
24 individuals at the most, the class of geologists 40 years old or
older includes approximately 74 individuals. We find that a class of
this size is sufficiently large to satisfy the numerosity requirement.
See Johnson-Feldman v. Department of Veterans Affairs, EEOC Appeal
No. 01953168 (August 7, 1997) (proposed class of 70-90 individuals
sufficient to meet numerosity requirement).
Commonality and Typicality
These two requirements are considered together. Commonality requires
that there be questions of fact common to the class. See Mastern,
supra. Factors to be considered include 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 members'
treatment will involve common questions of fact. See Mastern, supra.
Typicality requires that the claims of the class agent be typical of the
claims of the class. See Mastern, supra. The overriding typicality
principle is that the interests of the class members must be fairly
encompassed within the class agent's claim. See Falcon, 457 U.S. at 160.
Here, complainants claim that geologists 40 and over were subjected to
discrimination when they were separated or downgraded due to their age.
Complainants alleged that they, as geologists 40 or over, were subjected
to this treatment, as were approximately 72 other geologists 40 or over.
We find that this is a homogeneous group of persons with interests in
common. The practice at issue�downgrading or separating geologists 40
or over�affects the whole class and it appears likely that the members'
treatment will involve common questions of fact. Moreover, all members
of the class have an interest in demonstrating that when the agency
conducted its October 1995 RIF, it discriminated against geologists 40
and over. As such, we find that the proposed class meets the commonality
and typicality requirements.
Adequacy of Representation
Although the AJ determined that the class agents were not adequate
representatives of the class, as they failed to establish that they
had any legal training or experience, complainants have since obtained
an attorney. The Commission finds that this attorney will fairly and
adequately protect the interests of the class and we therefore find that
the class has met the adequacy of representation requirement.
Accordingly, after a careful review of the record, including complainants'
statement on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we hereby direct that the
following class be certified: geologists in the Denver commuting area,
40 years of age or older, who were separated or downgraded pursuant to
the October 1995 RIF. The FAD is REVERSED and the matter REMANDED to the
agency for processing consistent with this decision and the order below.
Mixed-Case Class Complaint
We note that this complaint involves a Reduction-in-Force, an action that
is appealable to the Merit Systems Protection Board (MSPB). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), as revised November 9, 1999, at 4-3. Although Commission
regulations on the procedures for processing mixed-case complaints do
not specifically discuss mixed-case class complaints, we find that the
processing of such complaints should be analogous to the processing of
mixed-case individual complaints, described in 29 C.F.R. � 1614.302.
As such, upon remand, the agency shall continue processing the case in
accordance with 29 C.F.R. � 1614.302(d), by investigating the merits of
complainants' claim and issuing a final agency decision in accordance with
Subpart A of 29 C.F.R. Part 1614. In the final decision, the agency shall
inform complainants that if they are dissatisfied with the decision, they
may appeal the matter to the MSPB (not the EEOC) within 30 days of receipt
of the agency's final decision. 29 C.F.R. � 1614.302(d)(1)(ii).<2>
ORDER
It is the decision of the Commission to certify the following class:
geologists 40 years and over in the Denver area who were involuntarily
separated or downgraded due to the October 1995 RIF. The agency is
ORDERED to process the remanded class complaint in accordance with 29
C.F.R. � 1614.302, as described above. Within fifteen (15) calendar
days of the date this decision becomes final, the agency shall notify
all potential class members of the acceptance of the class complaint in
accordance with the requirements of � 1614.204(e).
A copy of the agency's letter of acknowledgment to complainants 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
May 6, 2003
Date
1 The AJ ordered that, if the agency chose to implement his
decision, it must notify complainants that their complaint was
being filed as individual complaints and processed or dismissed
in accordance with 29 C.F.R. � 1614.107.
2 We note that certain employees adversely affected by the RIF filed
MSPB appeals prior to the filing of the formal class complaint, including
Complainant Throckmorton.