01975226
10-08-1998
Laurence Carton, et al., Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Laurence Carton, et al. v. Social Security Administration
01975226
October 8, 1998
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Laurence Carton, et al., )
Appellant, )
)
v. ) Appeal No. 01975226
) Hearing No. 120-95-6776X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
Laurence Carton, the class agent, filed the instant appeal with this
Commission from a final decision of the Social Security Administration
(hereinafter referred to as agency) dated May 20, 1997 concerning a
class complaint of employment discrimination.
BACKGROUND
Laurence Carton, acting as the class agent, filed a class complaint
dated August 1, 1995 alleging that a class of persons were discriminated
against on the basis of age. Other purported members of the class also
filed separate complaints on the same matter. The agency issued separate
final agency decisions on September 25, 1995 dismissing the complaints
for failing to state a claim. The Commission considered each of the
appeals in one consolidated decision in Carton, et al. v. Social Security
Administration, EEOC Appeal Nos. 01960606, et al. (Apr. 15, 1996).
The Commission found that the appellants had alleged that the agency
had discriminated against the appellants on the basis of age by failing
to upgrade the Reconsideration Non-Disability Examiner (RNDE) position
from a GS-11 to a GS-12. Carton, et al., EEOC Appeal Nos. 01960606,
et al. The Commission noted that the position is also referred to as
a Reconsideration Reviewer.<1> Id.
The agency found that the position was reclassified from a GS-993
to a GS-105 series with no change in the existing grade level. Id.
The agency found that the Office of Personnel Management (OPM) determined
the coverage of the position standard including the grade level. Id.
The agency found that because the final authority for establishing and
imposing the standard rested with OPM, OPM is the responsible agency,
not the Social Security Administration. Id.
The Commission rejected the agency's argument with the following
analysis:
The Commission finds that the EEO complaints do not concern an action
taken by OPM. Rather, appellants are contesting the agency's failure to
upgrade their positions from a GS-11 to a GS-12. The OPM has indicated
that except on appeal, the decision regarding position classification "is
entirely the agency's to make." Even if the agency is correct in arguing
that it was constrained in setting the grade level by OPM classification
standards, we still find that the agency had the authority to set the
grade level. The agency's apparent argument that it could not increase
the grade level to a GS-12 because such an action would constitute a
violation of the law, is an argument that addresses the merits of the
allegation and is not appropriate in a procedural matter. [citations
omitted]. The Commission finds that the allegation that the agency
failed to upgrade appellants' position to a GS-12 was filed against the
correct agency and states a claim under [29 C.F.R.} �1614.106(a).
Id.
The Commission remanded the complaints for further processing. Id.
On April 17, 1997 an EEOC Administrative Judge issued a decision
recommending that the class complaint be accepted as a class complaint.
The administrative judge defined the class complaint as follows:
All Reconsideration Non-Disability Examiners and Reconsideration Reviewers
over the age of 40 and employed at SSA's ODO office in Baltimore, Maryland
and seven Program Centers nationwide who, on or after March 20, 1995 did
not have their positions upgraded to GS-12 as a result of the Agency's
alleged discriminatory decision not to upgrade these positions because
of the incumbent's ages.<2>
On May 20, 1997 the agency issued a final decision rejecting the
administrative judge's recommendation and dismissing the class complaint
on the grounds that the class did not meet the regulatory criteria for
certification. The instant appeal is from the May 20, 1997 decision.
On appeal the agency also argues that the class complaint should be
dismissed for failing to state a claim.
ANALYSIS AND FINDINGS
I. State a Claim
On appeal the agency argues that the instant complaint fails to state
a claim because of actions taken by the OPM. The agency argues:
[T]wo decisions rendered on January 6 and 15, 1998 by [the OPM] [found]
that the [Reconsideration Reviewer] position is properly classified at
the GS-11 level.<3> . . . These OPM decisions effectively supersede the
agency's classification decision, are not appealable, and the agency
must abide by OPM's findings. OPM's decisions also indicate that the
complainant has failed to state a claim of discrimination.
. . . .
[T]he agency has no authority to classify the RNDE position at another
level and the agency must retain the classification of the position at
the GS-11 level according to OPM's decisions.
The OPM decisions also effectively eviscerate the complainant's
allegations that the agency committed any sort of age discrimination
against the complainant. . . . It is clear from the complainant's
submissions that he attacks SSA's decision that the RNDE positions be
classified at the GS-11 level. The complainant cannot now dispute that
upon an independent review, OPM has reached the same conclusion as SSA;
therefore, the complainant's allegations of age discrimination are
clearly meritless.
. . . .
With OPM's decision, it is now clear that the complainant has not suffered
"any direct, personal deprivation at the hands of" SSA. [citations
omitted]. . . . The complainant also does not fit the Supreme Court's
definition of "aggrieved employee" under the Commission's regulations,
because the complainant no longer has a remedy from SSA. [citations
omitted]. . . .
Because of OPM's decisions, the agency's purportedly tainted
classification decision has been superseded by OPM's independent,
de novo review, and the agency is bound by OPM's classification
decision. [citation omitted] . . .
Lastly, assuming arguendo that SSA had indeed committed age discrimination
when making its previous classification decision, OPM's decisions indicate
that other, non-discriminatory factors would have led the agency to the
same result . . . As a result, the complainants can not show that any
SSA action has aggrieved them.
The agency has submitted copies of three Classification Appeal Decisions
from OPM dated January 6, 1998, January 15, 1998, and September 1, 1998.
The January 6, 1998 decision concerns by an appeal by three persons
of the Social Security Administration, Reconsideration Review Section
(Philadelphia, PA). The OPM found in the January 6, 1998 decision that
the position of Social Insurance Specialist, GS-105-11 was properly
classified. In the January 15, 1998 decision the OPM found that the 13
appellants of the Social Security Administration, Reconsideration Review
Unit (Birmingham, Alabama), were correctly classified in the position
of Social Insurance Specialist, GS-105-11. In the September 1, 1998
decision the OPM found that the two appellants of the Social Security
Administration, Office of the Assistant Regional Commissioner (Chicago,
Illinois), were correctly classified in the position of Social Insurance
Specialist, GS-105-11. These appellants appear to be part of the
instant class at issue in this decision and the OPM Classification Appeal
Decisions appear to concern the classification of the Reconsideration
Non-Disability Examiner position at issue in the instant class action.
The Commission has already decided that the instant complaint, now a
purported class complaint, states a claim of discrimination. Carton,
et al., EEOC Appeal Nos. 01960606, et al. The agency did not file
a request for reconsideration from our prior decision. The agency,
in part, raises the same arguments regarding the OPM that were fully
considered and rejected in Carton, et al., EEOC Appeal Nos. 01960606,
et al. The Commission recognizes that the three Classification Appeal
Decisions by the OPM are new evidence that were not available until
after the instant appeal was filed. The Commission shall exercise
its discretion and consider such evidence in the instant appeal.
The Commission finds that the OPM decisions may be used as evidence by the
agency to show that its classification decision(s) was not based on age
discrimination. The OPM decisions (which, we note, do not specifically
concern appeals by all 129 or 130 projected members of the instant class)
do not, however, alter our finding that the appellants, now a class,
were initially aggrieved by the Social Security Administration's alleged
discriminatory failure to upgrade their position. Once an appellant
or a class is aggrieved, then that person or class is always aggrieved
unless the complaint has been rendered moot. The agency has not argued
that the class complaint has been rendered moot and the Commission does
not believe that the prior decision finding the appellants aggrieved
was incorrect. Therefore, we find that the class is aggrieved.
The Commission finds that the agency's reliance on the OPM decisions
addresses the merits of the class complaint in a procedural decision.
The OPM decisions may lend credence to the agency's purported legitimate
reasons for its actions and it is possible that the class may be
collaterally estopped from raising some arguments concerning the facts of
the instant complaint, but all of those issues, which we do not consider
here, are appropriate in a decision on the merits of a discrimination
claim, and are not appropriate in a procedural dismissal. Therefore,
we find that the agency improperly dismissed the instant complaint for
failing to state a claim.
II. Class Certification
EEOC Regulation 29 C.F.R. �1614.204 provides the framework for processing
class complaints. EEOC Regulations 29 C.F.R. �1614.204(a)(2) states:
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;
(iv) The agent of the class, or, if represented, the representative,
will fairly and adequately protect the interests of the class.
Within 30 days of the agency's receipt of the complaint the agency shall
forward the complaint to the Commission. 29 C.F.R. �1614.204(d)(1).
The Commission shall assign the complaint to an administrative judge, id.,
and the administrative judge may recommend that the agency dismiss the
complaint "because it does not meet the prerequisites of a class complaint
under �1614.204(a)(2)." Id. at �1614.204(d)(2). After the administrative
judge issues a written recommendation to the agency as to whether to
accept or dismiss the class complaint, the agency may then accept,
reject, or modify the administrative judge's decision within 30 days
of receipt of the decision and complaint file. Id. at �1614.204(d)(7).
"The dismissal of a class complaint shall inform the agent either that
the complaint is being filed on that date as an individual complaint
of discrimination and will be processed under subpart A or that the
complaint is also dismissed as an individual complaint in accordance
with �1614.107." Id.
The Commission finds no reason to disturb the EEOC Administrative
Judge's recommended decision finding that the class complaint should
be certified.
A. Numerosity
On appeal the agency concedes that the class has satisfied the numerosity
requirement set forth in �1614.204(a)(2)(i).
B. Commonality
The agency argues that appellant has not demonstrated any inference
that age discrimination "was at the heart of the agency's reason not to
upgrade the RNDEs." It is possible that this argument is an attempt by
the agency to argue that the complaint fails to state a claim because of
a lack of evidence. The Commission has already stated in this decision
that the instant complaint states a claim of discrimination. The class
alleged that it was not upgraded because of the agency's discrimination
on the basis of age. The agency admits that the class was not upgraded.
This is sufficient to state a claim of employment discrimination.
Although the agency does not clearly reference on appeal the commonality
requirement set forth in �1614.204(a)(2)(ii), the Commission finds that
the agency's argument concerning the class agent's purported failure
to demonstrate an inference that the failure to upgrade was motivated
by age discrimination, may be an argument that the class complaint does
not have questions of fact
in common to the class. The agency cites the Commission's following
statement in Harris, et al. v. Department of the Treasury, EEOC
Appeal No. 01922968 (Nov. 18, 1992): "[W]hile courts have not
required complainants to prove the merits of their claims at the class
certification stage, complainants have been required to prove more than
bare allegations that they satisfy the requirements of Rule 23(a)."
Harris, et al., EEOC Appeal No. 01922968. In Harris the Commission
described the class prerequisite requirements (then under Part 1613
regulations) as being the "counterpart of Rule 23(a) of the Federal
Rules of Civil Procedure . . ." Id.; accord Moten, et al. v. Federal
Energy Regulatory Commission, EEOC Request No. 05960233 (Apr. 8, 1997)
(applying �1614.204(a)(2)). In Harris the question concerning whether
sufficient evidence was provided to "raise an inference of a common
question of pattern and practice through allegations of specific incidents
of discrimination," arose in the context of whether the class satisfied
the commonality requirement. Harris, et al., EEOC Appeal No. 01922968.
In the instant matter we find that the class has satisfied the commonality
requirement set forth in �1614.204(a)(2)(ii). The same questions of fact
apply to the entire class - whether their positions were not upgraded
because of the age of the class members (we note that the agency
admits on appeal that it does not dispute that the Reconsideration
Reviewer positions and the Reconsideration Non-Disability Examiner
positions at issue in the class complaint "are essentially the same.").
The decision not to upgrade all class members was apparently essentially
one decision that applied to all positions at issue in the complaint
(both the Reconsideration Reviewer positions and the Reconsideration
Non-Disability Examiner positions). The agency does not dispute that all
Reconsideration Non-Disability Examiners and Reconsideration Reviewers
were over the age of 40 years.
The agency, citing Harris, argues that appellant "should be required to
show something more than the [Reconsideration Non-Disability Examiners']
ages to satisfy the requirements of class certification." [footnote
omitted]. Harris, in part, concerned an allegation that all Black male
Revenue Agents employed by the Department of the Treasury at the GS-11
level or above were denied promotions. Id. The Commission held in
Harris:
In the absence of substantive evidence demonstrating that the same
officials were responsible for the non-promotions or that the disputed
non-promotions could be directly attributable to a particular policy
or personnel practice, we find that the class members' claims regarding
their failure to be afforded promotions . . . involve different factual
questions.
Id.
In the instant matter it appears that the same officials and policy
(whether discriminatory or not) were responsible for the decision
not to upgrade the members of the class from a GS-11 to a GS-12.
This is not the situation in Harris where the class, as defined in
Harris, would be at different grade levels and would have been denied
different promotions at different times by different decision makers.
The members of the instant class have virtual identical factual issues
- was the decision not to upgrade the Reconsideration Non-Disability
Examiners' and Reconsideration Reviewers' positions made based upon
the age of the appellants. There is no need for the instant class
to link separate promotion decisions together as there was in Harris.
The situation in the instant case is such that any substantive evidence
necessary to show commonality has been met merely by the age of the
appellants and the uniqueness of the one decision being challenged -
the failure to upgrade. The agency's challenge of appellant's purported
evidence showing age discrimination inappropriately addresses the merits
of the claim prior to a hearing.
Our decision takes into account a class agent's limited access to
precertification discovery. Hines, Jr., et al. v. Department of the
Air Force, EEOC Request No. 05940917 (Jan. 29, 1996). Furthermore, the
administrative judge "has the latitude to redefine a class, subdivide
it or recommend dismissal if it is discovered that there is no longer
a basis to proceed as a class complaint." Id.
C. Typicality
The agency found that because the class agent retired from the agency in
September 1995, but seeks to represent a class composed almost entirely
of current employees of the agency, the requirement of typicality has
not been satisfied. On appeal the class agent admits he has retired.
The Commission finds that despite the class agent's retirement, the class
agent's claim of failure to upgrade is the same, and therefore typical,
of the claims of the other class members. The difference in remedy
that might be available to the class agent and some other members of
the class does not, in the instant matter, render the claim of the class
agent atypical. Therefore, we find that the class agent has satisfied
the typicality requirement set forth in �1614.204(a)(2)(iii).
D. Adequacy of Representation
Appellant proceeded pro se before the administrative judge. The
administrative judge found that the requirement for adequacy of
representation had not been met. The administrative judge, however,
recommended certifying the class and instructed the agency to notify
the class agent that he must secure adequate representation. The class
agent subsequently obtained the services of an attorney.
On appeal the agency argues that the class agent is an inadequate
representative because he retired from the agency and the class agent's
interests "do not mirror the interests of class members who are currently
employed with the agency." While the Commission recognizes the remedy may
be different for the class agent and for the members of the class who have
not left the Reconsideration Non-Disability Examiner and Reconsideration
Reviewer positions, the Commission finds that the class agent can still
be expected to fairly and adequately protect the interests of the class.
See Moten, et al., EEOC Request No. 05960233.
On appeal the agency also argues that the class agent's counsel "fails to
satisfy the adequacy of representative prong due to the representative's
firm's simultaneous representation of a number of African-American male
employees seeking to certify a class action against SSA." The Commission
finds that the agency has failed to show a present conflict of interest in
the instant class agent's attorney's firm representing two class actions
against the same agency. The Commission finds that the agency's concerns
are speculative and are insufficient, at the present time, to show that
the adequacy of representation prong has not been satisfied. Therefore,
we find that the class has satisfied the adequacy of representation
requirement set forth in �1614.204(a)(2)(iv). If a conflict of
interest does arise, then the class representative can be required
to hire a different attorney in order to maintain the class action.
Cf. Byrd, et al. v. Department of Agriculture, EEOC Request No. 05900291
(May 30, 1990) ("Class certifications are always tentative and can be
modified.")(citations omitted).
CONCLUSION
The agency's decision dismissing the class complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency is ORDERED to process the remanded class complaint in
accordance with 29 C.F.R. �1614.204(e) et seq. Within 15 calendar days
of the date this decision becomes final the agency shall notify all
class members of the acceptance of the class complaint in accordance
with the requirements of �1614.204(e). Within 30 calendar days of
the date this decision becomes final, the agency shall provide the
appropriate EEOC District Office with a copy of the notice sent to class
members and shall request the appointment of an administrative judge,
who shall undertake the continued processing of the complaint pursuant
to �1614.204(f) et seq. The agency shall provide a copy of the notice
of certification and request for appointment of an administrative judge
to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 8, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1It appears that there may be a slight difference between the positions
which need not be addressed in the instant decision.
2Although the Commission referenced an additional allegation in Carton,
et al., EEOC Appeal Nos. 01960606, et al., neither party has challenged
the administrative judge's definition of the class. Therefore, we shall
not disturb the administrative judge's definition of the class.
3On appeal the agency states that the acronym RNDE will be used by the
agency for both positions (Reconsideration Non-Disability Examiner and
Reconsideration Reviewer) "unless the context requires otherwise."