01A34145_r
09-30-2004
Michael J. Irenski, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Irenski, et al. v. United States Postal Service
01A34145
September 30, 2004
.
Michael J. Irenski, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34145
Agency No. CC-0003-02
Hearing No. 170-A3-8311X
DECISION
On July 3, 2003, complainant, as class agent, filed the instant appeal
from the agency's Notice of Final Action dismissing his class complaint.
Complainant was an EAS-23 Purchasing Specialist at the Hoboken, New Jersey
Purchasing and Material Service Center (PMSC). Complainant filed a formal
EEO class complaint with the agency dated January 12, 2003, alleging
discrimination based on age when the decision was made by the agency's
headquarter's office to restructure the PMSC functional area and rename
it Supply Management which resulted in the closing of the Hoboken NJ PMSC.
Complainant's complaint was forwarded to the EEOC Philadelphia District
Office for a decision on certification. The Administrative Judge (AJ)
issued a decision on May 16, 2003, denying certification of the class.
In her decision, the AJ found that complainant failed to establish the
prerequisites of commonality, typicality, and numerosity.
With regard to typicality and commonality, the AJ concluded that the class
agent failed to show that there are common questions of fact affecting the
putative class. The AJ noted that according to the agency's submissions,
the circumstances surrounding the potential class members differed: four
of the potential class members identified in the record retired from
their positions under the Voluntary Early Retirement Authority (VERA),
four others accepted voluntary demotions, and one accepted a lateral
reassignment with no change in grade or pay. Thus, the AJ determined
that it cannot be concluded that the purported class members received
similar treatment. The AJ noted that the class agent's claim that the
agency PMSCs with the highest percentages of VERA-eligible employees
were targeted for closure is insufficient by itself to show that there
are factual issues common to the class. Further, the AJ noted that the
class agent accepted a demotion when the Hoboken PMSC was restructured.
The AJ stated that the record fails to show that the class agent's claims
regarding his demotion are connected with the claims of the other class
members or that his injury was substantially the same as incurred by
other class members.
With regard to numerosity, the AJ noted that complainant identified
thirteen employees at the Hoboken PMSC as potential class members.
The AJ determined that a class with thirteen members fails to satisfy the
numerosity prerequisite, because joinder of the individual complaints
has not shown to be practical. Additionally, the AJ stated that even
if the putative class were to include the additional thirteen agency
employees from the Minneapolis PMSC, sufficient numerosity for class
certification would not be shown.
Finally, the AJ noted with regard to adequacy of representation, the
class agent is self-represented.
The AJ stated that generally it is preferred for a class agent to have
counsel in representing a class because of the complexities involved in
such litigation. However, the AJ made no specific finding regarding
the adequacy of representation, since the EEOC has held that adequate
representation could be obtained post-certification, if the class
satisfied the remaining prerequisites.
On June 27, 2003, the agency issued a Notice of Final Action fully
implementing the AJ's decision denying class certification.
On July 3, 2003, the class agent filed the present appeal. On appeal
the class agent acknowledged that the class was proceeding pro-se due
to monetary concerns. The class agent stated that thirteen participants
have been named in the class. Complainant claimed that some of the names
provided by the agency were incorrect and he provides a corrected list
of the proposed thirteen class members. The class agent states that the
class members all lived in the New York/New Jersey area at the time of
the closing; however, they now live in at least four states. With regard
to the class members, complainant states that four accepted �Discontinued
Service� and not VERA; two accepted positions in Supply Management at a
higher level but were forced to relocate; six took demotions to a lower
grade; and one took a lateral position but was placed on a different tour.
The class agent states that �class consolidation is based on the fact
that the office was closed, so the class was consequently filed by
anyone who felt discriminated against due to their age.� The class
agent claimed that the common question of fact is that the office was
closed based on the fact that the Hoboken office had the most retirement
eligible people. The class agent states that his claim is typical to
the class because he also lost his position due to the closing of the
Hoboken Office and he was one of the six who took a demotion to a lower
level position. Finally, the class agent stated that he will fairly
and adequately protect the interests of the class. He notes that all
the alleged class members agreed to his representation. He states that
as a Team Leader/Acting Manager for many years at the Hoboken office,
he is the person most familiar with the office and its workings.
In response to the class agent's appeal, the agency contends that its
decision that complainant failed to meet the prerequisites of commonality,
typicality, and adequacy of representation was correct.
ANALYSIS AND FINDINGS
The purpose of class 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) (citations omitted).
Under EEOC Regulations, a class complaint must allege that: (i) the class
is so numerous that a consolidated complaint concerning the individual
claims of its members is impractical; (ii) there are questions of fact
common to the class; (iii) the class agent's claims 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). The agency may reject a
class complaint if any of the prerequisites are not met. See Garcia
v. Department of Justice, EEOC Request No. 05960870 (October 10, 1998).
The Commission has determined that the class has failed to establish
numerosity. 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. v. United States Postal Services,
EEOC Request No. 05930253 (October 27, 1993); 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).
We note that on appeal, complainant claims that the proposed class
consists of only the thirteen members from the Hoboken PMSC. However,
even if the class were to include the thirteen employees from the
Minneapolis PMSC, the total class would comprise only twenty-six members.
Even viewed in the light most favorable to the class, we find that the
AJ correctly determined that this class, involving at most twenty-six
individuals from two separate facilities, is insufficient to meet the
numerosity requirement. Because we find that the class agent's request
for class certification fails because it did not meet the requirement
of numerosity, it is not necessary to make determinations regarding
commonality, typicality, or adequacy of representation.<1>
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
September 30, 2004
__________________
Date
1EEOC Regulation 29 C.F.R. � 1614.204(d)(7)
provides that the agency's final order dismissing 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 29 C.F.R. � 1614.107. Here, we find that
the agency's final order fails to address complainant's individual
complaint. Unless it has already done so, the agency shall process
complainant's individual complaint under Subpart A of 29 C.F.R. Part 1614.