Mario H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

0120171707 (E.E.O.C. Feb. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Mario H.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120171707

Hearing No. 550-2017-00098X

Agency No. ARPOM16SEP04087

DECISION

Complainant, the putative class agent, filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from the Agency’s decision dated March 16,
2017, dismissing his complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the reasons
set forth below, the class complaint is REMANDED.

ISSUE PRESENTED

The issues presented on appeal are whether the EEOC Administrative Judge (AJ) properly denied
Complainant’s request for pre-certification discovery and determined that the class complaint
should not be certified because it did not meet the criteria set forth in the Commission’s regulations
at 29 C.F.R. § 1614.204(a)(2).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

Complainant previously worked as an Assistant Professor, AD-1701-00, at the Agency’s Defense
Language Institute (DLI) in Presidio of Monterey in California. Complainant worked for the
Agency from April 6, 2015 until he resigned in lieu of termination on May 12, 2015.

Complainant initiated EEO counseling on September 19, 2016, and on November 24, 2016, filed
a “formal class complaint” in which he alleged that the Agency subjected him and others to
harassment and discrimination on the bases of national origin (Syrian) and religion (Muslim) when
it:

1. Formed teams, transferred employees in/out based on religion and nationality,
which led to segregated teams and feeding hostility among groups;

2. Promoted and demoted employees based on religion and nationality;

3. Over and under evaluated employees based on religion and nationality;

4. Lacked affirmative action that allowed Muslims to reach higher positions; on the
contrary, there were disparate impacts for not selecting Muslims; and

5. Had lax policies and failed to enforce existing policies to fight religious and
national origin discrimination.

Essentially, Complainant alleged that the former Dean of the Middle East School systematically
promoted Christians and Lebanese persons for key positions; demoted or transferred employees
because they are Muslim or non-Lebanese; used derogatory language and mannerisms against
Muslims and non-Lebanese persons; and micromanaged on the bases of their religion and national
origin. Additionally, Complainant alleged that the Chair of the Department posted a large
Lebanese flag in the conference area of the office in a manner that harassed employees based on
their national origin.

AJ’s Decision

In a brief submitted to the AJ dated December 14, 2016, the Agency opposed class certification of
Complainant’s complaint. On February 24, 2017, the AJ assigned to the case dismissed
Complainant’s class complaint on the basis that Complainant, as putative class agent, failed to
meet the class-certification requirements found at 29 C.F.R. § 1614.204(a)(2). The AJ noted that
the absence of a class certification brief from Complainant made it difficult to ascertain whether
there was any evidentiary proffer to support certification, but the Report of Investigation (ROI) for
his individual complaint (Agency No. ARPOM15JUN02181) regarding his termination contained
some of the necessary information.

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The AJ determined that Complainant did not identify by name any other members of the class, but
he requested pre-certification discovery related to “fired or demoted employees in the 3 Middle
Eastern Schools in the past 10 years, EEO and administrative complaint filers over the past ten
years, and the structure and membership of the monthly teams over the past ten years.” Thus,
regarding numerosity, the AJ concluded that Complainant did not proffer the requisite number of
fired or demoted employees, nor did he show that a large number of individuals have filed EEO
or administrative complaints based on their placement on teams segregated by religion and/or
national origin. The AJ noted that Complainant appeared to claim that there was a realignment
that allowed for an all-Christian and pro-Syrian regime unit, but he still only proffered evidence
that approximately six to seven Muslims were affected by this realignment segregation and
provided no evidence that there were other realignments prior to his hiring in April 2015 that
allegedly created segregated units. The AJ found that although Complainant wanted to conduct
discovery to see if there were class members affected before the May 2015 realignment, his proffer
was insufficient to justify requiring pre-certification discovery.

Regarding commonality and typicality, the AJ determined that Complainant did not establish this
element of certification because he worked for the Agency for thirty-six days, and there was no
indication in his brief that he was eligible for promotion, was demoted, or was “under-evaluated”
based on his religion or nationality. Additionally, the AJ noted that Complainant was not a current
employee, and was subjected to school reorganization and realignment for 12 days. The AJ
concluded that the extremely short duration of Complainant’s tenure with the Agency made him
ill-suited to serve as the Class Agent for a class of employees who, according to Complainant,
were subjected to promotion, demotion, and evaluation decisions, “none of which he was around
long enough to experience.” Additionally, the AJ found that Complainant did not proffer any
evidence that prior to the 2015 Middle East School realignment, other Muslim and/or non-
Lebanese employees were subjected to the alleged discrimination to which he was subjected.

Regarding representation, the AJ determined that Complainant did not meet this certification
requirement because, as class representative, he had not presented any information that indicated
that he had the skill and experience to represent the class. Consequently, the AJ dismissed
Complainant’s class complaint and remanded Complainant’s complaint to be processed
individually. The Agency’s final order implemented the AJ’s decision and noted that
Complainant’s individual complaint would continue to be processed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that as a former employee, he did not have access to information
to support class certification, and that the AJ denied his request for discovery before deciding the
issue of certification. The Agency maintains that the AJ properly determined that pre-certification
discovery was not warranted because Complainant did not establish a prima facie case of class
disparate treatment. The Agency further maintains the AJ properly found that Complainant’s
complaint did not establish the requirements for class certification.

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ANALYSIS AND FINDINGS

Denial of Request for Discovery

In an email to the AJ dated January 9, 2017, Complainant requested pre-certification discovery on
the basis that he did not possess information necessary to prove certification requirements. On
January 10, 2017, the Agency objected to Complainant’s request for pre-certification discovery,
to which Complainant responded in opposition. The AJ denied certification of Complainant’s
class complaint without granting his request for discovery.

We note that the purpose of class action complaints is to economically address claims “common
to [a] class as a whole . . . turn[ing] on questions of law applicable in the same manner to each
member of the class.” General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155
(1982); Mitchell, et al. v. Department of the Air Force, EEOC Appeal No. 01A41492 (Oct. 18,
2005); Mastren, et al. v. U.S. Postal Service, EEOC Request No. 05930253 (Oct. 17, 1993). EEOC
regulations provide that 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 are typical of the claims of the class; and (iv) the agent of the
class, or if represented, the representative will fairly and adequately represent the interests of the
class. 29 C.F.R. § 1614.204(a)(2). The regulations further provide, at 29 C.F.R. § 1614.204(d)(2),
that a class complaint may be dismissed if it does not meet the four requirements of a class
complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107.

Upon review of this matter, we find that the AJ improperly denied class certification without
conducting discovery. In so finding, we note that 29 C.F.R. § 1614.204(f) provides that parties
are entitled to reasonable development of evidence on matters relevant to issues raised in a class
complaint. This includes discovery relevant to establishing class certification. Regarding
numerosity, Complainant alleged that he and an unknown number of other Muslim and non-
Lebanese employees were subjected to a hostile work environment that included derogatory
comments and mannerisms, segregation, and the posting of the Lebanese flag. Although the AJ
concluded that Complainant could not meet the numerosity certification requirement, it is unclear
from the record how many Muslim and non-Lebanese employees were subjected to the alleged
harassing treatment. Without this critical information in the record, we find it improper for the AJ
to conclude that Complainant cannot meet the numerosity requirement. See Devon H. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120152087 (Jan. 26, 2017).

Regarding commonality and typicality, the AJ determined that Complainant did not establish this
element of certification because he worked for the Agency for only thirty-six days, and there was
no indication that he was eligible for promotion, was demoted, or was under-evaluated based on
his religion or nationality. However, as noted above, the class complaint involved an allegation
of a hostile work environment that included segregation, derogatory comments/actions, and the
brandishing of a Lebanese flag in a harassing manner.
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While Complainant was only employed with the Agency for approximately 36 days, this amount
of time could have been sufficient to have exposed Complainant to harassment that is common or
typical of the class.

In summary, we find that the record is insufficiently developed for a determination of class
certification. Therefore, we find that the AJ abused her discretion in deciding the issue of class
certification without allowing for pre-certification discovery. See Devon H. v. Dep’t of Homeland
Security, EEOC Appeal No. 0120152087 (Jan. 26, 2017), req. for recon. denied, EEOC Request
No. 0520170354 (Aug. 10, 2017).

We note that the Agency notified Complainant it would resume processing of his individual
complaint when it implemented the AJ’s decision, but that the record does not reflect the current
processing status of his individual complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the Agency’s final order and REMAND this matter to
the Agency for further processing consistent with this decision and the ORDERS below.

ORDER

The Agency shall undertake the following actions:

1. Within thirty (30) calendar days from the date this decision is issued, the Agency
shall forward the entire record to the Hearings Unit of the San Francisco District
Office. In its transmittal letter, the Agency shall request that an EEOC
Administrative Judge be assigned for the purpose of undertaking pre-certification
discovery.

2. Thereafter, the Administrative Judge shall allow the parties to engage in
pre-certification discovery for a period of no less than ninety (90) days. During the
discovery period, the AJ shall require that the parties cooperate to produce
affidavits from the class members detailing the individual, specific incidents which
comprise specific incidents that comprise the overall claim of a hostile work
environment.

3. If the Administrative Judge finds that the proposed class satisfies the criteria of
numerosity, typicality, and commonality but lacks adequacy of representation, the
AJ shall conditionally certify the class and allow Complainant a period of sixty (60)
days thereafter in which to obtain adequate representation. The AJ shall
subsequently issue a decision on the class complaint in accordance with 29 C.F.R.
§ 1614.204(d).

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4. While the above action is pending, the Agency shall hold the processing of
Complainant’s individual complaint in abeyance. If the AJ's decision denies class
certification, the Agency shall resume the processing of Complainant’s individual
complaint.

The Agency is directed to submit a Report of Compliance, as provided in the statement entitled,
“Implementation of the Commission’s Decision.” The report shall contain supporting
documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant 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. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant 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. §§ 1614.407 and 1614.408. 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) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this
decision. 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.
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“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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

__________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 6, 2019
Date