01A12565_r
05-01-2003
Ishmeal Abdul-Raheem, et al., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ishmeal Abdul-Raheem, et al. v. Defense Logistics Agency
01A12565
May 1, 2003
.
Ishmeal Abdul-Raheem, et al.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A12565
Agency No. JQ-00-016
Hearing No. 310-A0-5258X
DECISION
Complainant, the putative class agent, timely initiated an appeal from
the agency's February 8, 2001 final order dismissing the class complaint
alleging unlawful employment discrimination on the basis of race (African
American) in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 2000e et seq.
On November 12, 1999, complainant filed a class complaint claiming that
the agency changed the shift schedule at his facility such that the
predominately African-American division (transportation unit) in which
he worked was no longer eligible for weekend overtime opportunities.
By contrast, complainant claims that predominately white divisions at
his facility continued to benefit from weekend overtime opportunities.
Complainant further claims that the agency failed to hire and promote
African-Americans commensurate with the non-African-Americans, averring
that he personally had not received a promotion in 20 years.
The agency forwarded the complaint to the EEOC's Dallas District Office
for a determination regarding class certification. On November 27,
2000, 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 the complaint failed to satisfy the criteria of numerosity,
commonality, typicality, and adequacy of representation as set forth at
29 C.F.R. � 1614.204.
In addressing numerosity, the AJ found that complainant submitted
only a list of names of purported class members, but provided no
information identifying the positions for which they were not selected,
and/or whether they were denied weekend overtime opportunities. The AJ
concluded that without this information, the number of members of the
proposed class could not be assessed, and thus complainant failed to
satisfy the numerosity requirement.
Regarding commonality, the AJ found that complainant, as class agent,
by merely providing a list of names, failed to provide sufficiently
specific information identifying the class members and the nature of
their claims. The AJ determined that complainant failed to provide
sufficient information to satisfy the commonality requirement.
In analyzing the typicality requirement, the AJ again made reference to
the inadequacy of complainant's evidentiary submission, and determined
that complainant failed to specify the harm suffered by the purported
class members. Therefore, the AJ concluded that the record was
insufficient to ascertain whether or not complainant's claims were
typical to that of the putative class, and so failed to satisfy the
typicality requirement.
In addressing adequacy of representation, the AJ noted that complainant
had been identified as the class representative. The AJ then noted that
complainant was not an attorney, and determined that because of the
inadequacy of the documentation prepared by complainant in support of
the class complaint, it was unlikely that complainant could adequately
represent the class without the help of an attorney. Accordingly, the AJ
found that complainant failed to satisfy the adequacy of representation
requirement.
Additionally, in pertinent part, the AJ determined that the class
complaint failed to sufficiently identify how the class members had been
harmed in a term or condition of employment. Therefore, in addition
to its failure to satisfy 29 C.F.R. � 1614.204, the AJ determined that
the class complaint failed to state a claim under 29 C.F.R. �� 1614.103
and 1614.107.
In conclusion, the AJ rejected the class complaint for failing to satisfy
the criteria at 29 C.F.R. � 1614.204, and indicated that complainant
could pursue his individual complaint.
In its final order, the agency adopted the AJ's decision, and dismissed
the complaint. Complainant now appeals this determination.
On appeal, complainant argues that the complaint sent to the AJ was
not the real class action complaint. Complainant argues that not all
of the issues had been included, and suggests that the EEO office
may have tampered with the documentation and otherwise engaged in
unethical conduct. Complainant also argues that the class is �so
numerous� because the issues affect all black employees in Texas and
Georgia and all regions under the same institutional directive, as well
as applicants in all regions where the Defense Logistics Agency operates.
Additionally, complainant argues that commonality is established by �our
common race and colors.�
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, and evidence of specific
adverse actions taken. See Mastren v. United States Postal Service,
EEOC Request No. 05930253 (October 27, 1993). However, mere conclusory
allegations, standing alone, do not show commonality. A class agent
must specifically identify facts common to the class. Id.
In this case, review of the record reveals that complainant contacted
an EEO Counselor concerning the following incidents:
1) On October 31, 1999, he was the only African-American removed from
the weekend shift;
2) Complainant was blacklisted because he won a religious discrimination
complaint during the late 1980's; and
3) Complainant has not been promoted in over 15 years because
African-Americans are treated unfairly when competing for promotions.
The EEO Counselor's Report further reflects that complainant claimed
that his predominately African-American transportation unit is held
to the rules more strictly than the predominately white work units;
and that a schedule change, purportedly implementing a new streamlining
policy, resulted in only predominately white work units being permitted
to earn overtime on weekends. The EEO Counselor's Report also reflects
that complainant indicated that because he is blacklisted, he has not
applied for any promotions, nor has he received any, in the past 15 years.
In his formal complaint, complainant claimed discrimination in the
loss of weekend overtime opportunities, and his lack of promotion �in
over 20 years.� Complainant also claimed that other black employees
have not been promoted and that he would �like a class action.� In a
handwritten statement dated January 5, 2000, complainant agreed to act
as class agent, and indicated that his claims are �basically the same�
as those on an attached list. Complainant further indicated that white
people are hired at a higher grade than most of the parties on the list,
and that he has not had a promotion in 20 years. Review of the attached
list reveals that it is composed of 34 names, with work and home phones,
representing 9 different agency �organizations� or work units.
In applying the above referenced legal standards to this case, the
Commission concurs with the AJ's conclusion that the class action
complaint must be rejected for failing to satisfy any of the class
action criteria at 29 C.F.R. � 1614.204. Specifically, we find that
complainant provides no evidence demonstrating that other similarly
situated African-American co-workers were denied weekend overtime
opportunities, such that he has failed to show commonality or typicality
regarding this claim. We note that the list of purported class members
submitted by complainant represent 9 different �organizations,� with no
indication of whether any of these organizations did, or did not, have
weekend overtime opportunities. We also determine that complainant
did not satisfy the commonality or typicality requirements regarding
his claim alleging unfair hiring practices and lack of promotions
of African-Americans because he provides no evidence whatsoever to
substantiate either of these claims.
Moreover, as to both claims, we find that complainant's list of 34
individuals from 9 different organizations fails to satisfy the numerosity
requirement, and that his appeal argument attempting to enlarge the
class to include additional regional offices constitutes no more than
mere speculation. We note that while the exact number of class members
need not be shown prior to certification, some showing must be made
of the number of individuals affected by the alleged discriminatory
practices who may assert a claim. See Moten, supra. Here, we find
that complainant failed to provide adequate information from which to
determine even an approximate estimate of the number of members of the
class regarding either of his claims. Finally, we concur with the AJ
that based on the lack of effectiveness of complainant's representation
in this case, it would be unreasonable to believe that complainant alone
could adequately represent the class' interests. Therefore, we find that
complainant fails to satisfy the adequacy of representation requirement.
Finally, while on appeal complainant claims that the AJ did not receive
the �real� complaint from the agency, suggesting unethical conduct,
we find no evidence supporting this claim, to include a copy of the
purported �real� complaint.
In summary, upon review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency order dismissing the captioned class complaint.<1>
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 1, 2003
__________________
Date
1Notwithstanding the above determination,
we find that in its final order, in adopting the AJ's decision to
dismiss the class complaint, the agency did not acknowledge the AJ's
directive regarding the processing of complainant's individual complaint.
Moreover, the current record before the Commission is devoid of any
information regarding the processing of complainant's individual
complaint. Therefore, if it has not already done so, the agency must
immediately notify complainant that it will undertake the processing of
his individual complaint.