01a31931
08-02-2005
Pamela A. Grigsby, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela A. Grigsby, et al. v. United States Postal Service
01A31931
August 2, 2005
.
Pamela A. Grigsby, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31931
Agency Nos. CC-326-0021-98
CC-326-0006-99
Hearing Nos. 150-99-8758X
150-99-8759X
DECISION
On February 7, 2003, complainant, as class agent, filed the present appeal
from the agency's Notice of Final Action dismissing her class complaints.
ISSUE PRESENTED
The issue presented herein is whether the agency appropriately
implemented a decision by an EEOC Administrative Judge dismissing the
class complaints.
BACKGROUND
The class agent, a Distribution Clerk at the agency's General Mail
Facility in Panama City, Florida (facility), contacted the EEO Office
on March 16, 1998 and November 13, 1998. In complaint (1), the class
agent stated that on January 17, 1998, management handpicked employees
for detail assignments without posting them. The class agent included
a letter (Letter) dated January 25, 1998, stating that the signees are
informing the reader of the agency's continued practice of discrimination
in handpicking individuals rather than following the National Agreement
and agency rules and regulations. The class agent named twenty-five
individuals as class members who signed the January 25, 1998 letter.
On her second pre-complaint form, she stated that this matter was a
class complaint alleging unlawful retaliation when management demanded
off day overtime on six out of nine Saturdays. The class agent included
a copy of a petition (Petition)sent to her congressman (Congressman)
signed by fifty employees of the facility. The Petition stated that
the "[Plant Manager] and staff are extremely vindictive. Should one of
[the signees] disagree with one of their decisions, file a grievance for
a contract violation, or file a complaint under the Equal Employment
Opportunity (EEO) program then it is 'Katie bar the door.' They will
do anything possible to get even and make life just as miserable and
unbearable as possible." When the matters were not resolved informally,
the class agent filed her formal complaints. In the formal complaints,
the class agent alleged unlawful retaliation for prior EEO activity when:
(1) on January 17, 1998, management handpicked employees for detail
assignments without posting them (hereinafter complaint (1)) and
(2) on September 19, 1998, when overtime was demanded for six out of nine
Saturdays (hereinafter complaint (2)). She again noted the Petition that
was sent to the Congressman complaining about management's vindictive
nature as to, among other things, EEO complaints.
The complaints were accepted and the agency forwarded the matters to an
EEOC Administrative Judge (AJ1). AJ1 decided not to grant certification
of the class action. Specifically, AJ1 stated that the class agent
�allege[d] retaliation/reprisal discrimination and thus fail[ed] to state
a claim under 29 C.F.R. Part 1614, as reprisal discrimination is not
within the purview of the Commission's regulations on class complaints.�
The agency issued its final order implementing AJ1's decision. The class
agent appealed the matter to the Commission. In Grigsby, et al. v. United
States Postal Serv., Appeal No. 01A01516 (Aug. 14, 2002), the Commission
disagreed with AJ1's recommended denial of class certification on the
ground that a retaliation claim may not lawfully be the basis of a
class action. Further, the decision in Appeal No. 01A01516 noted that
the record was insufficiently developed on the issues pertinent to a
determination of class certification to permit the Commission to render
a decision on class certification. Therefore, the Commission remanded
the matter to the appropriate EEOC hearings unit in order for additional
facts to be developed including whether the proposed class complaints
satisfy the requirements to state a claim of class-based retaliation.
The complaints were then forwarded to a second EEOC Administrative
Judge (AJ2). AJ2 issued an Acknowledgment Order on September 17, 2002.
The Order authorized the parties to seek discovery prior to the hearing.
The parties engaged in discovery. In the class agent's response to the
agency's first set of interrogatories, she listed forty-four employees
who she believed were retaliated against by management. In Part II of
her response, the class agent states that all individuals listed opposed
discrimination when they signed the July 3, 1998 letter of complaint to
the Congressman.
In the Acknowledgment Order (Order), AJ2 also stated that the parties
shall submit briefs articulating the parties' positions regarding
the requirements of a class complaint. The class agent was ordered
to submit her brief no later than December 6, 2002, and the agency's
deadline was no later than December 20, 2002. The class agent failed
to issue any such brief. The agency submitted its motion to dismiss
the class complaint, or in the alternative, its motion for a decision
on class certification without a hearing.
The agency's motion argued that the class agent's complaint should be
dismissed for failure to state a claim, because she has not shown that
all the class members have engaged in prior EEO activity or opposed
unlawful discriminatory practices. As for the forty-four individuals
listed, the agency indicated that only ten had participated in the EEO
process. The agency contended that the petition to the Congressman
related to management's failure to treat the employees with dignity
and respect. Further, the agency argued that the class agent failed to
show that the class met any of the four prerequisites for certification.
It is noted that the agency included the class agent's responses to its
interrogatories as Agency Exhibit #10 in support of its motion to dismiss
the class complaint, or in the alternative, motion for a decision on
class certification without a hearing.
On December 27, 2002, AJ2 issued a decision without a hearing dismissing
the class complaints. In the recommended decision, AJ2 noted that
the class agent failed or refused to respond to the Order to provide
a brief stating her position regarding certification of the class.
Therefore, AJ2 only had limited information from the pre-complaint and
complaint forms to discern the class agent's contentions. AJ2 found
that the class agent failed to establish the elements of commonality
or typicality. AJ2 focused on whether the potential members of the
class had prior EEO activity. The class agent did not show that all
those named as members of the class engaged in prior EEO activity.
The agency indicated that only twelve of twenty-five purported class
members in complaint (1) and ten of forty-four purported class members
in complaint (2) had any record of prior EEO activity. Further, AJ2
noted that the class agent did not provide anything to dispute this.
In addition, AJ2 determined that the class agent did not establish the
element of numerosity. At most, AJ2 determined that there were only
twelve class members as to complaint (1) and ten as to complaint (2).
AJ2 stated that the class agent did not provide a brief in support of
class certification and, therefore, there was insufficient information
for AJ2 to determine the ease of identifying class members and their
addresses. AJ2 noted that the class agent did not establish adequacy
of representation noting the class agent's blatant refusal to comply
with AJ2's Order to provide a brief on class certification showed that
the class agent was not able to adequately represent the interests of
the proposed class. Accordingly, AJ2 concluded that the class agent
failed to meet any of the four prerequisites for class certification.
Accordingly, AJ2 dismissed the class complaints.
The agency implemented AJ2's decision. The class agent now appeals
arguing that the class for complaint (2) included fifty individuals who
signed the Petition to the Congressman opposing unlawful retaliation
for EEO activity. Therefore, the class agent asserts that whether the
members participated in prior EEO activity is irrelevant because the claim
of retaliation is based on protected opposition activity in the form of
the Petition to the Congressman. The class agent also contends that the
same holds true for complaint (1). The agency filed a brief in opposition
to the class agent's appeal. The agency argues that the class agent is
invoking the opposition clause for the first time on appeal. Further,
the agency contends that the class agent is essentially benefitting from
failing to comply with AJ2's Order by not filing a brief.
ANALYSIS AND FINDING
Complaint (1)
In complaint (1), the class agent alleged that management handpicked
employees for detail assignments without posting them which was in
retaliation for the class members' opposition activity. The regulation
set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The class agent contends that the members of the class opposed
discrimination. The class agent's only proof of any opposition activity
took the form of the Letter dated January 25, 1998. In complaint (1),
the class agent asserted that on January 17, 1998, the agency handpicked
individuals for detail assignments. The opposition activity by the class
members occurred after the alleged discriminatory action. The class agent
indicated that she had prior EEO activity, however, no information was
provided as to the members of the class and their prior EEO activity or
any other protected opposition activity which occurred prior to the date
management handpicked employees for detail assignments. Accordingly,
we conclude that the class agent failed to state a claim in complaint
(1). Therefore, complaint (1) is dismissed pursuant to 29 C.F.R. �
1614.107(a)(1).
Complaint 2
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).
Upon review we find that the class agent has failed to satisfy the
typicality requirement for class certification as to complaint (2). The
overriding principle with regard to typicality is that class agents
must possess the same interest and suffer the same injury as members of
the proposed class. Johnson-Feldman, et al. v. Department of Veterans
Affairs, EEOC Appeal No. 01953168 (August 7, 1997) (citing Falcon, at
156). In complaint (2), the class agent asserts on appeal that the class
members all signed the Petition addressed to the Congressman opposing
unlawful retaliation on the part of the Plant Managers and his staff.
As a result of the Petition, the Plant Manager required overtime on six
out of nine Saturdays.
The class agent has only supplied a copy of the Petition and the list of
signees. The class agent has not indicated that she was required to work
overtime as a result of the Petition. Further, there is no information
as to whether the class agent was on the overtime desired list at the
time the Plant Manager required overtime. We note that the class agent
was asked by AJ2 in the Acknowledgment Order to articulate her position
regarding the requirements of a class. The class agent's failure to
respond to the Acknowledgment Order has resulted in lack of information
within the record for the class agent to show that she possessed the same
interest and suffered the same injury as members of the proposed class.
Accordingly, we conclude that the class agent has not shown that her
claim is typical of the purported class in complaint (2).
In addition, the Commission notes that the class agent failed to meet
the requirement of adequacy of representation for both complaint (1)
and (2). The record shows that the representative failed to respond to
AJ2's Acknowledgment Order requiring the parties to articulate their
positions regarding the requirements of a class. The representative
has not provided any information to the Commission even on appeal.
Therefore, we find that there is no information or evidence presented
to establish that the representative has the experience or expertise
necessary to �fairly and adequately protect the interest of the class.�
29 C.F.R. � 1614.204(a)(2)(iv). Thus we find that the proposed class
does not meet this requirement.
CONCLUSION
Accordingly, the agency's decision to implement the AJ2's decision to
deny class complaint certification is affirmed.<1>
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
August 2, 2005
__________________
Date
1The agency is reminded that pursuant to the
provisions of 29 C.F.R. � 1614.204(d)(7), the agency shall process the
claims raised by the class agent as an individual complaint. In addition,
the agency shall process other complaints filed by putative class members
which have been subsumed by the class action or held in abeyance pending
the processing of the class complaint. The agency may consolidate the
complaints pursuant to 29 C.F.R. � 1614.606.