01A23856_r
03-24-2004
Lynn L. Cosentine, et al., Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Lynn L. Cosentine, et al. v. Department of Homeland Security
01A23856
March 24, 2004
.
Lynn L. Cosentine, et al.,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A23856
Agency No. I-99-C177
Hearing No. 310-A0-5072X
DECISION
Complainant, a Senior Special Agent, GS-13, at the agency's
Dallas, Texas District Office filed a class complaint of employment
discrimination alleging harm on the bases of sex (female), national
origin (Italian-American), age (52), and in reprisal for her previous
EEO activity. The agency forwarded the class complaint to an EEOC
Administrative Judge (AJ) for a certification determination, pursuant
to 29 C.F.R. � 1614.204(d)(1). The AJ, on November 7, 2001, denied
certification because the claim lacked commonality, typicality and
numerosity.<1> The agency, on June 6, 2002, informed complainant that
it would be processing the class complaint as an individual complaint.
The Commission deems the agency's decision to have effectively adopted
the AJ's decision denying class certification. The instant appeal is
from the agency's denial of class certification. For the reasons set
forth herein, the agency's decision is affirmed.
In her complaint dated September 16, 1999, complainant claimed class-wide
discrimination on the bases of sex, national origin, age, and reprisal,
when she was not interviewed and subsequently not selected for the
position of Deputy District Director, GS-1801-14, announced under MSP
II 99-255, and located in Dallas, Texas. Complainant stated that she
has been at the GS-13 grade level since 1982. In her brief to the AJ in
support of class certification, complainant asserts that �[t]he proposed
class includes all [W]hite, female [Immigration and Naturalization
Service] employees who sought promotions above the GS-12 level since
1990 but were not selected.�
The AJ found that the class complaint did not meet the commonality
requirement, because certification would require the evaluation of
numerous subjective decisions by agency officials in different parts of
the nation involved in different promotion actions. The AJ noted that
given the numerous varied positions within the agency and the requirements
for those positions, the criteria for selections will not be common.
The AJ stated that the request for certification presented no evidence
of an overall policy of discrimination. With respect to typicality, the
AJ found that complainant's claims are not typical of the class given
that no other specific individuals have been identified and because
three women and a man within complainant's age group were selected for
an interview for the Deputy District Director position. As for the
element of numerosity, the AJ found that this element was lacking since
complainant did not indicate the names of other employees who would
comprise the class. The AJ noted that a numerosity determination is
made based on the number of those allegedly injured when the complaint
is filed and does not take into consideration future class members.
The AJ found that the element of adequate representation was met.
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). A class complaint may be dismissed
if it does not meet each of these four requirements, or for any of the
procedural grounds for dismissal set forth in 29 C.F.R. � 1614.107.
See 29 C.F.R. � 1614.204(d)(2).
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 v. United
States Postal Service, EEOC Request No. 05930253 (October 27, 1993)).
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, EEOC Request No. 05930253).
Although the claims need not be identical, typicality requires that
the class agent's claims must be sufficiently typical to encompass the
general claims of the class members so that it will be fair to bind the
class members by what happens with the agent's claims. Conanan v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01952486 (January 13, 1998)
(citing Falcon, 457 U.S. at 156). The overriding typicality principle
is that the interests of the class members must be fairly encompassed
within the class agent's claim. Falcon, 457 U.S. at 159, n.15; 160.
Complainant argues that her individual promotion discrimination
claim involves the same pattern of disparate treatment against the
class because her claim challenges the same methods used generally to
prevent White females from being selected for higher level positions and
managerial positions. According to complainant, the class claims focus
on nationwide promotion practices that are excessively subjective and
allow for the use of bias and stereotypes. Complainant contends that
the agency's Affirmative Employment Report for 2000-2001 supports the
commonality and typicality of her class complaint. Complainant states
that the Report identified the following four �problems/barriers� that
support the commonality and typicality of the class complaint: (1)
the agency lacks a training program to identify, develop, and promote
employees into the senior manager and executive ranks; (2) there
are no clearly defined career paths; (3) managers and supervisors are
generally not held accountable for performance in the area of diversity
and promotion of equal and fair access to job benefits; and (4) managers
are not aware of the standards to use in achieving a fully represented,
culturally diverse workforce.
The agency contends that because promotion decisions are made on a
decentralized office-by-office basis, the proposed class lacked the
necessary commonality to be certified. The agency stated that it
operates over 500 separate offices throughout the United States and
in fifteen foreign nations. The agency further states that its three
domestic geographical regions are broken down into 33 domestic and three
international districts. According to the agency, each district or sector
operates in a largely autonomous fashion. The agency states that each
district or sector has independent authority over promotions up to the
GS-12 level. The agency notes that regional and headquarters involvement
in promotions is generally reserved for promotions to positions GS-13 and
above. The agency argues that individualized proof of the discriminatory
intent of thousands of decision-makers would need to be shown in order
to show the existence of common questions of law or fact.
The agency asserts that complainant's claims are not typical of others
within her protected group with regard to the other applicants for the
Deputy District Director position. The agency notes that three of the six
individuals interviewed for the position were women and all six of the
individuals were 40 years of age or older. The agency further argues
that complainant's claim is markedly different from the class she seeks
to represent. The agency noted that there are varying qualifications and
duties for each of the more than 80 occupation series covered by Merit
Staffing Plan II, as well as the different positions within each series.
After examining the record, we concur with the ultimate determinations
of the agency and the AJ, and find that the requirements of commonality
and typicality have not been satisfied and that the class should not be
certified. Initially, however, we must note a flaw in a portion of the
AJ's analysis. The AJ stated that the agency relied upon a decentralized
office-by-office approach in making promotion decisions. That approach,
however, is only applicable to those decisions being made with regard to
positions at the GS-12 grade level and below. The putative class would
be comprised of individuals who sought promotions to positions at the
GS-13 grade level and above. Those promotion decisions were made in a
more centralized approach by the three regional offices and headquarters.
Nonetheless, we find that complainant has not identified any agency
policy that has the effect of discriminating against the class as a
whole. Complainant has made a generalized allegation of discrimination
that by itself is insufficient to establish commonality. See Garcia,
EEOC Appeal No. 07A10107. Complainant has failed to show how her claim
of not being interviewed and selected for a Deputy District Director
position possesses commonality with individuals in many different job
categories and different grade levels. The purported class would include
many different occupation series with different skill requirements and
different selection criteria. We further find that complainant has not
provided specific, detailed information, showing that other individuals
were personally affected by the agency's alleged discriminatory practices
and policies. Complainant's reliance on the four �problems/barriers�
set forth in the Affirmative Employment Report in the instant case is
insufficient to establish an evidentiary basis from which one could
reasonably infer the operation of an overriding policy or practice
of discrimination. The Commission finds that complainant has not
established that there is commonality among the purported class members.
As for typicality, we find that complainant has failed to show any type
of nexus between her individual claim and those claims of the purported
class. Complainant has not identified any other specific individuals in
the purported class. Complainant clearly focuses her class claim on the
basis of sex as she offers little in the way of argument or evidence to
establish that her class claim is typical of those sharing the other bases
of the complaint. Furthermore, complainant has not shown how her claim
is typical of the alleged non-promotions made for a myriad of positions.
We find that complainant's claim is not typical of the class that she
purports to represent.
We find that the agency and the AJ properly denied complainant's request
for class certification because the request for class certification
failed to meet the requirements of commonality and typicality. It is
therefore not necessary to make findings regarding numerosity and adequacy
of representation.<2>
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 24, 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 decision was forwarded to the agency with a cover letter dated
April 18, 2002.
2The Commission notes that while the AJ found that reprisal can not
be used as a basis in class complaints, the Commission has held in
some circumstances that reprisal may state a valid basis in a class
complaint. See Ponder, et al. v. Social Security Admin., EEOC Appeal
No. 01A04411 (May 15, 2003) (citing Levitoff v. Department of Agriculture,
EEOC Appeal No. 01913685 (Mar. 17, 1992)). The class agent has failed,
however, to present adequate information to support certification of a
class allegation of reprisal in the instant matter.