01a45446
08-31-2005
John P. Stein, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John P. Stein, et al. v. United States Postal Service
01A45446
August 31, 2005
.
John P. Stein, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45446
Agency No. 4-H-335-0181-02
Hearing No. 150-AO-8821X
DECISION
On August 12, 2004, complainant as class agent, filed a timely appeal with
this Commission from the agency's Notice of Final Action dated July 15,
2004, dismissing his class complaint of unlawful employment discrimination
on the bases of disability and age, in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On September 9, 2002, complainant, as agent, filed a class complaint
wherein he alleged that he and members of the class were the victims of
unlawful employment discrimination on the bases of disability and age.
Complainant suffered an on-the-job injury on March 22, 2002. Upon his
return to work on March 28, 2002, complainant produced a letter from
his physician, indicating among other matters, that he could not use his
�right upper extremity� for overhead activities. Complainant was informed
to report to Bulk Mail, wherein a dispute arose between complainant and
two agency officials regarding the definition of the term �extremity.�
Complainant claimed that agency management refused to adhere to his
restrictions; that an agency Acting Supervisor was permitted to have
access to confidential information; and that she questioned complainant
about his medical condition, thereby creating a hostile work environment.
In a statement made during pre-complaint processing, complainant noted
that his physician faxed a clarification of the term �upper extremity�
at approximately 6:00 pm on March 28, 2002, when management informed
complainant's union steward that it �would honor the doctor's letter.�
The agency forwarded the complaint to the EEOC's Miami District Office
for a determination regarding class certification. On July 7, 2004, an
EEOC Administrative Judge (AJ) issued a decision denying class complaint
certification on the grounds that it did not meet the requirements of
29 C.F.R. � 1614.204(2). Specifically, the AJ found that the complaint
failed to satisfy the criteria of commonality, typicality, numerosity
and adequacy of representation.
A class complaint is a written complaint of discrimination filed on
behalf of a class by the agent of the class alleging that: (i) the class
is so numerous that a consolidated complaint of the members of the class
is impractical; (ii) there are questions of fact common to the class;
(iii) the claims of the agent of the class 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(d)(2).
EEOC Regulation 29 C.F.R. � 1614.204(d)(2) provides that a class
complaint may be dismissed if it does not meet the prerequisites of
a class complaint under 29 C.F.R. � 1614.204(a)(2) or for any of the
procedural grounds for dismissal set forth in 29 C.F.R. � 1614.1614.107.
Class complainants are not required to prove the merits of their claims at
the class certification stage; however, they are required to provide more
than bare allegations that they satisfy the class complaint requirements.
Mastren, et al. v. United States Postal Service, EEOC Request No. 05930253
(October 27, 1993).
Commonality
The purpose of the commonality and typicality requirements are to ensure
that class agents possess the same interests and suffer the same injury as
the members of the proposed class. General Telephone Co. of the Southwest
v. Falcon, 457 U.S. 147, 156-57 (1982). The putative class agent must
establish an evidentiary basis from which one could reasonably infer
the operation of an overriding policy or practice of discrimination.
Garcia v. Department of the Interior, EEOC Appeal No. 07A10107 (May
8, 2003). Generally, this can be accomplished through allegations of
anecdotal testimony from other employees who were allegedly discriminated
against in the same manner as the class agent, and evidence of specific
adverse actions taken. Id. Belser v. Department of the Army, EEOC
Appeal No. 01A05565 (December 6, 2001)(citing Mastren, EEOC Request
No. 05930253). Factors to consider in determining commonality include
whether the practice at issue affects the whole class or only a few
employees, the degree of 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. Garcia, EEOC
Appeal No. 07A10107 (citing Mastren, et al., EEOC Request No. 05930253).
In order to have a class complaint certified, the class agent must
establish that there are questions of fact common to the class.
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982).
The AJ found that while complainant claims that the agency has created a
hostile work environment for injured employees, he fails to identify in
what ways individuals over forty or with physical or mental disabilities
are being discriminated against. The AJ indicated also that complainant
makes broad claims regarding limited duty employees, claiming that a
hostile work environment has adversely affected the health condition
of injured employees. However, the AJ again found that complainant
failed to identify what agency actions in particular created a hostile
work environment. Complainant failed even to identify the ages and
disabilities of the potential class members. The AJ concluded therefore,
that the complainant was unable to demonstrate that there are questions
of fact common to the class members.
Typicality
Regarding typicality, the AJ determined that as with the naming of facts
common to the class, little information has been provided as to which
issues affect which class members. The AJ was unable to determine from
the evidence submitted, that the claims of the class agent are typical
of those of the class.
Numerosity
EEOC Regulation 29 C.F.R. � 1614.204(a)(2)(i) requires that a class be
so numerous that a consolidated complaint of the members of the class
is impractical. This regulation is patterned on Rule 23(a)(1) of the
Federal Rules of Civil Procedure. The Supreme Court has indicated that
the numerosity requirement of Rule 23 imposes no absolute limit for the
size of a class complaint, but rather, requires an examination of the
facts of each case. See General Telephone Co. v. EEOC, 446 U.S. 318,
330 (1980). Thus, although courts are reluctant to certify a class with
30 or fewer members, there are no specific numerical cut-off points.
See Harris v. Pan American World Airways, 74 F.R.D. 24, 23 F.R. Serv. 2d
1335, 1349 (ND. Cal. 1977).
Here, exclusive of complainant, the record is devoid of any evidence
identifying class members. Complainant suggests that the number
of potential class members with claims typical to his is in the
thousands. The AJ found that despite the opportunity to conduct discovery,
complainant has yet to identify potential class members, and makes only
general statements regarding how many employees injured on the job have
been affected by the agency's allegedly discriminatory conduct. The AJ
concluded that complainant's general statement that all injured employees
constitutes a class is insufficient to meet the numerosity requirement.
Adequacy of Representation
In order to maintain a class action, the class agent must claim that the
agent of the class, or, if represented, the class agent's representative,
will be able to fairly and adequately protect the interests of the
class. Here, the AJ found that neither the class representative nor
the class agent is capable of representing the interests of the class.
The class representative has played no substantive role in the instant
complaint, other than submitting his change of address in September 2003.
The AJ noted instead, that the submissions in this matter, including
complainant's brief, come from the complainant. The AJ concluded that
because the representative has not been active in this matter, he is
not deemed capable of adequately protecting the interests of the class.
On July 15, 2004, the agency issued a final order which adopted the AJ's
decision not to certify the class complaint. After careful review of
the record, the Commission finds that the AJ's decision summarized the
relevant facts and referenced the appropriate regulation, policies,
and laws. We discern no basis to disturb the AJ's finding that the
class complaint be dismissed for failure to meet the requirements of
29 C.F.R. � 1614.204(a). We note that dismissal of the class complaint
does not preclude members of the class from proceeding with individual
complaints. The agency's final order properly advised the class agent
that the complaint is filed as an individual complaint of employment
discrimination.
It is the decision of this Commission to AFFIRM the agency's final action
for the reasons stated herein.
Individual Complaint
The agency issued a final decision dated August 4, 2004 dismissing
complainant's individual complaint of discrimination for failure to state
a claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
The Commission determines that the individual complaint fails to state a
claim under the EEOC regulations because complainant did not show that he
suffered a harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. The Commission acknowledges
that generally, an allegation that the agency discriminatorily forced
the complainant to work outside of medical restrictions would state
a claim. However, the specific circumstances of this case reflect that
complainant's own claim, as elucidated in his statement made during
pre-complaint processing, reveals that the agency agreed to honor
his medical restrictions on the same day as his request. Moreover,
complainant's allegation, on its face, does not amount to a claim
that the agency's conduct was so severe or pervasive as to alter the
conditions of his employment. To the extent that complainant's instant
appeal is from the agency's decision dismissing his individual complaint,
the Commission finds that the agency's decision to dismiss the complaint
for failure to state a claim was proper.
Accordingly, the agency's final decision dismissing complainant's
individual complaint for failure to state a claim is AFFIRMED for the
reasons set forth herein.
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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
August 31, 2005
__________________
Date