Natalie S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Feb 21, 2019

0120180009 (E.E.O.C. Feb. 21, 2019)

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

Natalie S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal Nos. 0120180009 and 0120181896

Agency Nos. DDFY16122 and DDFY2016053

EEOC Nos. 570201600808X and 570201600633X

DECISION

Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency final decision dated September 19, 2017 (Agency No.
DDFY16122, EEOC No. 570201600808X), and a second Agency final decision dated June 6,
2018 (Agency No. DDFY2016053, EEOC No. 570201600633X), rejecting a class complaint
certification request regarding complaints of unlawful employment discrimination asserting
violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq.

The Commission may, in its discretion, consolidate two or more complaints of discrimination
filed by the same complainant. EEOC Regulation 29 C.F.R. § 1614.606. Accordingly, the
Commission exercises its discretion to consolidate the captioned cases.

BACKGROUND

During the period at issue for both captioned formal complaints, Complainant worked as an
Assistant Principal with the Agency’s Domestic Dependent Elementary and Secondary Schools
(DDESS) and was assigned to the Gordon Elementary School in Fort Bragg, North Carolina.

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.
0120180009, 0120181896

2
Agency No. DDFY16122, EEOC No. 570201600808X
(hereinafter referred to as “Complaint 1”)

On March 11, 2016, Complainant initiated EEO Counselor contact. Complainant claimed that
the Agency had engaged in discrimination against African American/black Internal Applications
seeking promotions through “reference checks, supervisor contacts and endorsements by an
Agency Director” that were allegedly “biased” and “created a promotion barrier disparately
impacting the putative class.”

On March 22, 2016, the Agency transmitted the complaint file to an EEOC Administrative Judge
(AJ) for certification of the class action.

On July 31, 2017, the AJ assigned to the case (hereinafter referred to as “AJ1”) determined that
the class complaint did not meet the prerequisites for certification. Specifically, the AJ1
determined that Complainant was unable to establish commonality and typicality between
herself, as the potential class agent, and the purported members of the class she was seeking to
certify. AJ1 determined that Complainant only raised broad allegations of discriminatory
practices, and did not offer any specific information, affidavits, or anecdotal evidence to
establish a minimal evidentiary basis from which one could reasonably infer discriminatory
practices. Furthermore, the AJ1 noted that Complainant was attempting to satisfy the
commonality and typicality criterion by referring to prior or pending complaints filed against
Agency management. The AJ determined that the prior complaints are barred because “issue
preclusion bars the re-litigation of issues actually adjudicated and necessary to the judgment in a
prior litigation between parties.” Additionally, the AJ1 determined that Complainant failed to
identify any adequate legal representation, and that she, herself, did not possess the skills,
experience, time, and resources necessary to represent the interests of the class.2

On September 19, 2017, the Agency issued a final agency order accepting the AJ1's
determination denying the class certification. Additionally, in accordance to 29 C.F.R. §
1614.204(d)(7), it noted that Complainant’s class complaint would then be processed as an
individual complaint.

On October 19, 2017, Complainant appealed the class certification denial. Complainant argued
that the AJ1 erred in denying the certification. Complainant asserts that she met all the
requirements for certification, and proceeded to detail, at length, why the class certification
should be approved. For example, Complainant asserted that there were approximately five-
hundred known putative class members, and this number clearly demonstrated numerosity.
Complainant noted that the members were gleaned from complaints submitted to the American

2 On August 24, 2017, the AJ1 issued a corrected Decision on Class Certification, which still
denied Complainant’s class certification. The corrected decision merely added a Notice to the
Parties requiring the Agency to issue a final order to Complainant within 40 days of receiving the
decision and provided applicable appeal rights.

0120180009, 0120181896

3
Civil Liberties Union, the National Labor Relations Board, the Merit Service Protection Board,
civil court cases, civil rights enforcement and protection requests, congressional complaints,
congressional replies, and Agency complaints, which demonstrated wide-spread discrimination.
Complainant argued that the putative class were targeted for “working while Black”.

Agency No. DDFY2016053, EEOC No. 570201600633X
(hereinafter referred to as “Complaint 2”)

On February 4, 2016, Complainant initiated EEO Counselor contact alleging that the Agency had
discriminated against her based on her race and in reprisal for her EEO activity when she was not
selected for higher level positions. Complainant alleged that the Agency also discriminated
against a putative class of African American/black employees as well. Specifically, Complainant
asserted that the Agency published and posted vacancy announcements on USAJobs.gov from
January 1, 2016 through December 1, 2016, that were discriminatory and retaliatory toward
African American/black employees. Complainant argued that the selections process was
inherently biased against the putative class. Complainant argues that this bias was particularly
evident because the selections committees often reviewed an applicant’s awards, which
themselves were discriminatorily awarded. Complainant argued that there were class-wide issues
of discrimination for at least fifteen potential class members, including herself. Along with the
fifteen potential class members, Complainant had also previously asserted that there were at least
1,000 potential members.

On March 9, 2017, an EEOC AJ (hereinafter referred to as “AJ2”) issued a Request for
Information on Class Certification. Complainant timely responded. On April 10, 2017, the
Agency filed an Opposition to Class Certification and Motion to Dismiss.

On April 26, 2018, the AJ2 issued a decision denying Complainant’s request for class complaint
certification. The AJ2 determined that Complainant failed to satisfy the elements of
commonality, typicality, numerosity, and adequacy of representation necessary for certification
of a class. Additionally, in accordance to 29 C.F.R. § 1614.204(d)(7), Complainant was notified
of her right to elect to proceed with an individual complaint of discrimination.

On June 5, 2018, the Agency issued a final agency order accepting the AJ2's determination
denying the class certification. The Agency informed Complainant that her complaint could
process as an individual complaint.

On June 12, 2018, Complainant appealed the class certification denial. Complainant argued that
the AJ2 erred in denying the certification. Complainant asserts that she met all the requirements
for certification. Complainant provided a 29-page appellate brief, along with 142-pages of
attachments in support of her appellate brief. Complainant argued that there was systematic
reprisal, racial discrimination, and disparate treatment that targeted African American/black
employees. In her brief, Complainant provided a variety of statistics, a shortened lists of
potential class members, and a variety of performance appraisals to demonstrate that the class
should be certified.
0120180009, 0120181896

4

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).

Commonality and Typicality

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 Complainant, 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). As a practical matter, these two
aspects tend to merge.

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 v. Department of the Interior, EEOC Appeal No.
07A10107 (citing Mastren, EEOC Request No. 05930253).

In the present case, Complainant's request for class certification in Complaint 1 and Complaint
2 fails because Complainant did not establish commonality. Here, her class complaints are
merely an “across the board” claim of discrimination that fails to identify any specific
discriminatory policy or centralized decision-making authority or practice which has the effect of
discriminating against the proposed class as a whole. See Blue, et al. v. Department of
Defense, EEOC Appeal No. 01A30926 (Jan. 5, 2004), request for reconsideration denied, EEOC
Request No. 05A40407 (Feb. 26, 2004). Complainant’s generalized allegation of discrimination,
by itself, is insufficient to establish commonality. See Garcia v. Department of the
Interior, EEOC Appeal No. 07A10107.
0120180009, 0120181896

5

Complainant has failed to show that common questions of fact exist among the large variety of
Agency actions identified. See Neufeld, et al. v. United States Postal Serv., EEOC Appeal No.
01A32782 (Apr. 1, 2004) (claims of denial of promotions, removal from assignments, denial of
training, hostile work environment, and discipline, constitute an “across the board” claim of
discrimination). Furthermore, in Complaint 1, she references an email regarding certain Agency
job positions, and Complainant failed to point to any class member that had applied for any of
the relevant positions and was not selected for the reasons she alleged. This similarly occurred
in Complaint 2.

Regarding typicality, we note that claims need not be identical. Typicality requires that
Complainant's claims 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. Cosentine, et al. v. Department of Homeland Security, EEOC Appeal No. 01A23856
(Mar. 24, 2004) (citation omitted). The overriding typicality principle is that the interests of the
class members must be fairly encompassed within Complainant's claim. Id. (citing Falcon, 457
U.S. at 159, n. 15; 160). In Complaint 2, Complainant asserted that the putative class were
African American/black employees who applied for a position through one of the Agency’s
posted vacancy announcements. Complainant argued that she and the putative class members
were disadvantaged because they did not receive additional points in the selection process based
on the lack of professional awards each had. In this matter, the AJ determined that Complainant
failed to establish that she, or any of the putative class members, had applied for one of the
positions, and was not selected.

In sum, despite the plethora of documentation provided, both of the AJ’s found, and we agree,
that Complainant failed to provide the sufficient evidence, and that her claims are simply too
vague and speculative to support typicality or commonality.

Numerosity

The numerosity prerequisite requires that the potential class must be sufficiently numerous so
that a consolidated complaint by the members of the class, or separate complaints from each
member of the class, is impractical. See 29 C.F.R. § 1614.204(a)(2)(i). The focus in determining
whether the class is sufficiently numerous for certification is the number of persons affected by
the Agency's alleged discriminatory practice(s). See White, et al. v. Dep't of the Air Force,
EEOC Appeal No. 01A42449 (Sept. 1, 2005). The Commission has held that the relevant factors
to determine whether the numerosity requirement has been met are the size of the class, the
geographical dispersion of the class, the ease with which class members may be identified, the
nature of the action at issue, and the size of each member's claim. Carter, et al. v. U.S. Postal
Serv., EEOC Appeal No. 01A24926 (Nov. 14, 2003). The United States Supreme Court has held
that the numerosity requirement of Federal Rule of Civil Procedure 23 does not impose a
numerical minimum or cut-off point for the size of the class but, instead, requires an examination
of the facts of each case. General Tel. Co. of the Northwest Inc., v. EEOC, 446 U.S. 318, 330
(1980).
0120180009, 0120181896

6

Here, Complainant argued that there were numerous putative class members that all were
discriminated by the Agency’s hiring practices. At one point, she stated the potential of having
over five hundred class members in Complaint 1, and over 1,000 members in Complaint 2.
Along with large numbers, Complainant also provided information on a narrowed list of
individuals that she claimed were class members in Complaint 2. In that narrowed list, she listed
the individual’s occupation, and location. In addition to these lists, Complainant also provided
affidavits from some potential class members. However, those affidavits lacked any evidence
that those individuals had applied for, and were qualified for, the positions relevant to the
vacancy announcements in Complaint 2. Providing overarchingly large lists, and even pared
down lists of potential class members, does not meet the numerosity requirement. Other than the
gathering of a large, potential class, there is insufficient evidence that the individuals were
actually impacted by the claims in either Complaint 1 or Complaint 2.

Adequacy of Representation.

The final requirement is that Complainant and/or her representative adequately represent the
class. To satisfy this criterion, Complainant or the representative must demonstrate that he or she
has sufficient legal training and experience to pursue the claim as a class action and will fairly
and adequately protect the interests of the class. Besler, et al. v. Dep't of the Army, EEOC
Appeal No. 01A05565 (Dec. 6, 2001); Woods v. Dep't of Hous. and Urban Dev., EEOC Appeal
No. 01961033 (Feb. 13, 1998). In the instant matter, there is no legal counsel representing the
class in either Complaint 1 or Complaint 2. Complainant herself has not demonstrated that she
has sufficient ability to protect the interests of the class so that the claims of the class members
do not fail for reasons other than their merits. Id. Competency of counsel is particularly
important for the protection of the rights of class members, and Complainant has neither the
training nor experience to take on such a matter. See Foster and Starks v. Dep't of the Navy,
EEOC Request No. 05920483 (Dec. 23, 1992). While Complainant is clearly interested in the
outcome and is willing to do the research as a pro-se individual, it is not enough to establish that
she is qualified to adequately represent the interests of the class. Therefore, we agree with the
both the AJs that adequacy of representation is not established.

Processing of Individual Complaints

EEOC regulations provide that, when the agency dismisses a class complaint, it shall inform
Complainant either: (a) that the complaint is accepted and filed as an individual complaint of
discrimination; or (b) that the individual complaint is also dismissed in accordance with 29
C.F.R. § 1614.107(a). 29 C.F.R. § 1614.204(d)(7).

Therein, because Complainant has failed to satisfy the prerequisites for class certification, unless
it has already done so, the Agency must now process Complainant’s individual complaints under
Subpart A of 29 C.F.R, Part 1614.

0120180009, 0120181896

7
CONCLUSION

Accordingly, we AFFIRM the Agency's final order implementing the AJ1 and AJ2’s decision
denying certification of a class complaint in Complaint 1 and Complaint 2. The related
individual complaints are REMANDED for further processing in accordance with the ORDER
below.

ORDER (E0618)
To the extent it has not already done so, the Agency is directed to process Complainant's
individual complaints in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall
acknowledge to Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The Agency shall issue to Complainant a
copy of the investigative file and also shall notify Complainant of the appropriate rights within
one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If Complainant requests a final decision without a
hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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
0120180009, 0120181896

8
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409
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
0120180009, 0120181896

9
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 (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, Director
Office of Federal Operations

February 21, 2019
Date