01A30599_r
06-04-2004
Joseph K. Henderson, et al., Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Joseph K. Henderson, et al. v. Department of Homeland Security
01A30599
June 4, 2004
.
Joseph K. Henderson, et al.,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A30599
Agency No. 02-013
Hearing No. 310-A2-5539X
DECISION
On October 28, 2002, complainant, as class agent, filed an appeal from
the agency's Notice of Final Action dismissing his class complaint.
BACKGROUND
Complainant, a Call Center Program Specialist, GS-11, at the agency's
Federal Emergency Management Agency (FEMA), Texas National Processing
Service Center, in Denton, Texas, filed a class complaint of employment
discrimination on February 27, 2002, alleging that the agency engaged
in a pattern and practice of discrimination on the bases of race (Black
and Hispanic), color (black), sex (male) and disability (undisclosed)
with regard to promotions, training, wages, opportunities above GS-11,
discipline, hiring and recruiting, sexual harassment, hostile work
environment, and refusal to implement affirmative action, in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Specifically,
complainant alleged the agency fails to hire and recruit minorities,
uses subjective criteria for promotions for minorities (disguised as
detail assignments), inconsistently administers discipline (minorities
are terminated at a greater rate, without due process), perpetuates a
hostile work environment, refuses to implement affirmative action plans
or abide by laws, subjects employees to sexual harassment, and allows
a racist attitude to fester among the workforce. Complainant further
claims that on September 24, 2001, he was notified that he was not
selected for the position of Supervisory Program Specialist, GS-12.
The agency forwarded the complaint to the EEOC's Dallas District Office
for a determination regarding class certification. On August 3, 2002, an
EEOC Administrative Judge (AJ) issued a decision denying class complaint
certification on the grounds that it did not meet the requirements set
forth in 29 C.F.R. � 1614.204(a)(2). Specifically, the AJ found that
the complaint failed to satisfy the criteria of commonality, typicality,
and numerosity.
The AJ found that complainant's own claims involve a variety of
allegations, including non-selection for a specific position (Supervisory
Program Specialist, GS-12), which selection was made by the same agency
official who had previously offered complainant a supervisory position
(which complainant had declined). Among nine of the named potential class
members, whose specific claims are described in detail, the AJ found that
their claims ranged from being subjected to the use of derogatory comments
by different people over a period of years, discipline issues, and to
the denial of training and travel opportunities. The AJ further found
that the complaint identifies seven female class members and at least
one Caucasian class member. The AJ noted that no class characteristics
were identified for most of the potential class members and no one with
a disability was identified. The AJ observed that the complaint failed
to identify any particular agency-wide policy or practice which had a
discriminatory impact.
The AJ found that complainant failed to allege any facts in common
between his failure to be promoted and the failure of Black, Hispanic,
female, or qualified persons with disabilities, to be promoted. The AJ
determined that the complaint alleged an across the board class action
claim which does not merit certification merely because the class members
share the same race or sex. Thus, the AJ found that the complaint failed
to satisfy the commonality requirement.
In analyzing the typicality requirement, the AJ noted that complainant
did not show that he possessed the same interest and had suffered the
same injuries as the class members he sought to represent. Rather, the
AJ found complainant had not alleged any facts to show that his situation
was typical of those of the other class members, such as time in grade, or
that he too had been subjected to disparaging remarks or comments and had
been similarly denied travel opportunities. The AJ found that the class
of 20 potential members identified in the complaint is insufficient to
satisfy the numerosity requirement for class certification. The AJ stated
that he was not analyzing the adequacy of representation requirement
because of his finding that the class complaint failed to satisfy the
other requirements for class certification.
On September 24, 2002, the agency issued a final action adopting the AJ's
decision not to certify the class. In its decision, the agency notified
complainant that his complaint was being processed as an individual
complaint of discrimination.
ANALYSIS AND FINDINGS
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(a)(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. � 1614.107.
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).
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. General Tel. 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
specific incidents of discrimination, supporting affidavits containing
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, et al., EEOC
Request No. 05930253). Conclusory allegations, standing alone, do not
show commonality. Garcia, EEOC Appeal No. 07A10107 (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 the present case, the class agent's request for class certification
fails because the class agent did not show that common questions exist
among the purported class members; therefore, the class complaint did not
satisfy the commonality requirement. First, we note that there are no
specific claims described for half of the potential class members.<1> The
class complaint is merely an �across the board� claim of discrimination
that fails to identify any discriminatory policy or practice which has
the effect of discriminating against the class as a whole. See Neufeld,
et al. v. United States Postal Serv., EEOC Appeal No. 01A32782 (April 1,
2004); Blue, et al. v. Department of Defense, EEOC Appeal No. 01A30926
(Jan. 5, 2004). Although the class agent argues that part of the complaint
has been �lost� or not considered, he has failed to show that any evidence
or argument was lost. More importantly, the class agent has failed to
explain on appeal what claims or arguments have not been considered or
how there is commonality in the large variety of alleged agency actions
at issue.
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. See Mastren,
et al., EEOC Request No. 05930253; 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
at most twenty potential class members. All twenty potential class
members appear to 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 necessary for certification.
Since we find that the class agent's request for class certification fails
because it does not meet the requirements of commonality and numerosity,
it is not necessary to make determinations regarding typicality and
adequacy of representation.
CONCLUSION
Accordingly, the agency's decision to deny class complaint certification
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
June 4, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record details the claims for nine named potential class members.
The claims for one unnamed complainant are also described in detail.
Claims for the remaining ten named potential class members are not stated.