05950985
10-05-1998
Reginald E. Wood, Sr., et al., Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Reginald E. Wood, Sr., et al., )
Appellant, )
)
v. ) Request No. 05950985
) Appeal No. 01943756
Bill Richardson, ) Agency No. 100947435X
Secretary, )
Department of Energy, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 21, 1995, the appellant timely filed a request with the
Equal Employment Opportunity Commission (EEOC) to reconsider the decision
in Reginald E. Wood, Sr. et al. v. Department of Energy, EEOC Appeal
No. 01943756 (August 11, 1995), received by the appellant's attorney
on August 22, 1995. EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication
of established policy, 29 C.F.R. �1614.407(c)(2), and the previous
decision is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3).
The Commission grants the appellant's request for reconsideration pursuant
to 29 C.F.R. �1614.407(c)(2), and also reconsiders portions of the
previous decision on its own motion. For the reasons set forth herein,
the Commission affirms the agency's dismissal of the class complaint,
albeit for different reasons than those specifically addressed in the
Commission's previous decision.
ISSUES PRESENTED
The issues presented are as follows: (1) whether the previous decision
erred when it affirmed the agency's dismissal of the appellant's class
complaint on grounds that the class complaint was not timely filed and
that the complaint did not satisfy the numerosity requirement of a class
complaint; (2) whether the record demonstrates that the appellant timely
contacted an EEO Counselor; and (3)whether the class complaint should
be accepted given the statutory two-year limitation on back pay awards.
BACKGROUND
On September 10, 1993, the Chief of the Logistics Operations Branch
informed the appellant that the Director of the Logistics Management
Division (LMD) would not forward the appellant's request for night
differential back pay for himself and other employees for work they had
performed from February 1983 through December 1987.
On October 15, 1993, the appellant sought class complaint counseling.
He alleged that the agency had denied employees who had worked in the LMD
night differential pay from February 1983 through an unspecified date in
1991, and continued to deny the LMD employees their night differential
back pay from February 1983 through December 1987, based on race (Black),
color (dark brown), sex (male), and age (52).
The appellant gave the Counselor a copy of a memorandum, dated September
23, 1992. In that memorandum, the Director of Administrative Services
informed employees that they would receive night differential back
pay with interest for the period from 1988-1991. The September 23,
1992 memorandum did not address the issue of night differential back
pay from 1983 through 1987. The appellant indicated that employees
were under the impression that the agency would pay the remainder
of the night differential back pay with interest in the near future.
The appellant represented that he inquired about the payment owed in
February 1993 and subsequently drafted two memoranda regarding night
differential back pay in accordance with the instructions of the Chief
of the Logistics Operations Branch. The appellant decided to contact
the EEO Counselor after the Chief of the Logistics Operations Branch
told him on September 10, 1993, that the employees would have to deal
with the agency's Comptroller because Administrative Services did not
have the records.
The appellant submitted to the Counselor a list of 34 other "class
participants," including 5 Caucasian employees. The appellant indicated
that he could not know if he had listed everyone that should be listed
without access to agency records. A September 9, 1993 memorandum from
the appellant to the Chief of the Logistics Operations Branch lists 18
employees in addition to the appellant who were seeking night differential
back pay from February 28, 1983 through December 1987. Three of these
employees are not listed among the 34 "class participants" submitted to
the Counselor. The EEO Counselor's Report does not include any other
information regarding the number or identity of employees who could have
been adversely affected by the alleged discrimination from February 1983
through December 1991.
On November 19, 1993, the EEO Counselor mailed the appellant a notice of
his right to file a formal class complaint of discrimination. The record
does not document the date the appellant received the notice. On December
16, 1993, the appellant submitted a formal class complaint to the agency.
The appellant checked boxes on the complaint form alleging discrimination
based on race, color, sex, and age. However, the narrative portion
of the class complaint described only discrimination based on race.
The appellant alleged that the racial make-up of the LMD was and continues
to be 87% Black; that the percentage of Black employees in the LMD was
72% higher than the percentage of Black employees in any other division
in the agency; and that the LMD was the only division in the agency
that had not received the night differential pay which the Comptroller
General had authorized, effective February 28, 1983.
The class complaint was forwarded to the EEOC and assigned to an
Administrative Judge (AJ). It appears from the record submitted to the
Commission by the agency that the AJ issued a recommended decision based
solely on the submitted administrative record. The AJ recommended that
the agency reject the class complaint because the class agent did not
meet the requirements of timeliness and numerosity. The AJ found that
the appellant satisfied all of the other class complaint requirements.
As to the timeliness of the appellant's EEO Counselor contact, the
recommended decision indicated that the decision had been made no
later than September 1992 to award back pay only as far back to 1988.
The recommended decision characterized the appellant's activities
from September 1992 through September 1993 as an attempt to use an
alternative process to resolve a matter that already had been decided.
The recommended decision concluded that without more information to
justify an extension of the time period for EEO counselor contact,
the AJ could not recommend a finding that the contact was timely.
The recommended decision also found that the appellant's formal complaint
was untimely filed on December 16, 1993, thirty calendar days after the
date of the notice of right to file a class complaint.
The recommended decision further found that a class of 30 Black employees
did not satisfy the numerosity requirement for a class complaint.
The recommended decision found that the appellant knew the whereabouts
of those few class members who were no longer employed by the agency.
The recommended decision found that the remaining members of the class
were located within the same division at the agency's headquarters.
The recommended decision concluded that, given these circumstances,
it would not be impractical to combine 30 individual complaints of
discrimination for joint processing.<1>
The final agency decision indicated that the agency concurred in the
recommended decision of the AJ that the complaint was untimely filed
as a class complaint and did not meet the numerosity requirement to be
certified as a class complaint. The decision indicated that, therefore,
the agency adopted the recommended decision as the final agency decision
on the appellant's class complaint. The decision did not specifically
address any of the remaining requirements for a class complaint.
The appellant appealed the agency's dismissal of the class complaint
to the Commission. The previous decision found that in making the
determination of the acceptability of the class complaint, the AJ
accurately stated the relevant facts and applied the pertinent principles
of law and regulation. Accordingly, the previous decision affirmed the
agency's adoption of the recommended decision.
After the issuance of the previous decision on August 11, 1995, the agency
notified the appellant and his attorney that it had determined that the
formal class complaint had been timely filed.<2> The agency indicated,
however, that it would not disturb the final agency decision because the
complaint failed to meet the numerosity requirement for a class complaint.
The appellant then filed the instant request for reconsideration of
the previous decision. The appellant contends that the AJ wrongfully
determined there were only 30 people in the proposed class and that
the proposed class was not numerous enough to satisfy the numerosity
requirement for an administrative class complaint. The appellant
represents that the agency employed approximately 150-180 employees
in the LMD at any one time between 1983 and 1987. The appellant also
represents that a majority of those employees worked the 6:00 p.m. - 6:00
a.m. shift at one time or another and, therefore, were entitled to night
differential pay. The appellant reiterates that without the agency's
assistance, the extent of class membership can not be accurately obtained.
He points out that many class members may not even be aware that they
were entitled to night differential pay since even the LMD timekeeper
did not learn about the requirement until a training session in 1991.
The appellant further suggests that the agency's failure to produce the
specific number of potential class members from computerized personnel
files was evidence of bad faith.
The agency did not file a response to the appellant's request.
ANALYSIS AND FINDINGS
The Commission grants the appellant's request for reconsideration pursuant
to 29 C.F.R. �1614.407(c)(2) and also reconsiders the previous decision
on its own motion in order to address material matters not specifically
addressed therein.
Timeliness of the Formal Complaint Filing
After a review of the entire record, the Commission finds that the
agency failed to provide the Commission with evidence of the date(s)
the appellant and/or his attorney received notice of the right to file a
formal complaint. Absent such evidence, it is impossible to determine the
date by which the class complaint had to be filed in order to be timely.
Because the record does not contain evidence that the class complaint
was untimely filed, the Commission reverses the previous decision's
finding of untimeliness. See also footnote 2 infra. The Commission
reminds the agency that it may dismiss a complaint on a procedural ground
only if the record contains evidence which proves that the dismissal is
proper under one or more of the grounds set forth in EEOC Regulation 29
C.F.R. �1614.107.
Numerosity
EEOC Regulation 29 C.F.R. �1614.204(a)(2)(i) requires that a class be
so numerous that a consolidated complaint of the members of the class
is impractical. This regulation is patterned on Rule 23(a)(1) of the
Federal Rules of Civil Procedure as was its predecessor regulation,
29 C.F.R. �1613.601(b)(1). The Supreme Court has indicated that the
numerosity requirement of Rule 23 imposes no absolute limit for the size
of a class complaint, but rather, requires an examination of the facts
of each case. General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980).
Thus, although courts are reluctant to certify classes with 30 or fewer
members, there are no specific numerical cut-off points. See Harriss
v. Pan American World Airways, 74 F.R.D. 24, 23 F.R. Serv. 2d 1335,
1349 (N.D. Cal. 1977). In addition to number, other factors such as
the geographical dispersion of the class, the ease with which class
members may be identified, the nature of the action, and the size of
each plaintiff's claim, are relevant to the determination of whether
the numerosity prerequisite of Rule 23 has been met. Zeidman v. J. Ray
McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). The fact
that potential class members no longer are employed by the defendant
employer, or that those employees who remain may have a natural fear
or reluctance to bring an action on an individual basis, may also be
significant factors when deciding whether the numerosity requirement
has been satisfied. Arkansas Ed. Ass/n v. Board of Ed., Portland,
Ark. Sch. Dist., 446 F. 2d 763, 765-766 (8th Cir. 1971) (declining to
overturn the certification of a class of 20 teachers and former teachers
alleging salary discrimination based on race).
Although the Commission's requirements for an administrative class
complaint are patterned on the Rule 23 requirements, Commission decisions
in administrative class certification cases should be guided by the fact
that an administrative complainant has not had access to precertification
discovery in the same manner and to the same extent as a Rule 23
plaintiff. See Moten et al. v. Federal Energy Regulatory Commission,
EEOC Request No. 05910504 (December 30, 1991). Moreover, the exact number
of class members need not be shown prior to certification. Id. However,
in the administrative process, as in the court process, the correct focus
in determining whether a proposed class is sufficiently numerous for
certification purposes is on the number of persons who possibly could
have been affected by the agency's allegedly discriminatory practices
and who, thus, may assert claims. Id. The AJ retains the authority to
redefine a class, subdivide a class, or recommend dismissal of a class
if it becomes apparent that there is no longer a basis to proceed with
the class complaint as initially defined. Hines et al. v. Department
of the Air Force, EEOC Request No. 05940917 (January 29, 1996).
On reconsideration, the Commission finds that there is no basis in the
record for concluding that the class of employees and former employees
who had been adversely affected by the alleged discriminatory withholding
of night differential pay is limited to 30 individuals. The appellant
indicated to the EEO Counselor that without access to agency records,
he had been able to identify 35 "class participants." However, his
memorandum to the Chief of the Logistics Operations Branch identified 3
additional employees who had been harmed by the allegedly discriminatory
withholding of night differential pay but who apparently did not want to
be a "class participant." The Commission's class complaint regulation,
29 C.F.R. �1614.204, does not allow class members to opt out of a
certified class. See 57 Federal Register 12634, 12638-39 (1992).
Therefore, the Commission finds that the total number of identified
potential class members, including the appellant, is 38.
When finding that the class was limited to 30 members, the AJ did not
include 5 Caucasian employees whom the appellant had identified as
having been harmed by the agency's allegedly discriminatory withholding
of differential back pay. If in fact the agency failed to pay night
differential pay to all LMD employees because most of the employees in the
LMD were Black, then all of the LMD employees suffered individual injury
due to the agency's allegedly discriminatory practice. The Supreme
Court has recognized that under the statutory language of Title VIII
of the Civil Rights Act of 1968, 42 U.S.C. �3610(a), as well as the
statutory language of Title VII of the Civil Rights Act of 1964, 42
U.S.C. �2000e-5(a), Caucasian persons have standing to file complaints
alleging racial discrimination against Black persons where, allegedly,
they have suffered individual injury or injury in fact because of
the alleged racial discrimination. Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205, 208-212 (1972) (alleged injury to existing
tenants by exclusion of minority persons from the apartment complex
was the loss of important benefits from interracial association),
citing Hackett v. McGuire Bros., Inc., 445 F.2d 442, 446 (3d Cir. 1971)
(Congressional intent was to define Title VII standing as broadly as is
permitted under Article III of the Constitution); Stewart v. Hannon, 675
F.2d 846, 849-850 (7th Cir. 1982)(white employee was �person aggrieved�
by alleged racial discrimination against nonwhite employees). Similarly,
the Commission has held consistently that an employer who takes adverse
action against an employee or an applicant for employment because of an
interracial association violates Title VII. Parr v. Woodmen of the World
Life Ins. Co., 791 F.2d 888, 892 (11 Cir. 1986) and cases cited therein.
The Commission does not address the propriety of certifying a class
limited to the 38 class members already identified by the appellant
because it appears that the class consists of substantially more
individuals. The appellant represents in his request for reconsideration
that the agency employed approximately 150-180 employees in the LMD at
any one time between 1983 and 1987. The appellant also represents that a
majority of those employees worked the 6:00 p.m. - 6:00 a.m. shift at one
time or another and, therefore, were entitled to night differential pay.
There is no indication in the record that these representations are
untrue. Moreover, the agency has not controverted these representations.
The agency's silence is particularly telling in this case since, as
the appellant repeatedly has pointed out, only the agency has access to
the employment records which could establish the number and identity of
potential class members.
The Commission further observes that administrative judges have
the express authority to request specific information regarding the
numerosity requirement from both the appellant and the agency pursuant
to 29 C.F.R. �1614.204(d)(1). Alternatively, administrative judges may
exercise their discretionary authority under 29 C.F.R. �1614.204(a)(2)(i)
and (d)(1) to allow the parties to conduct discovery on the question
of numerosity before recommending dismissal for failure to satisfy the
numerosity requirement. See Moten et al. v. Federal Energy Regulatory
Commission, EEOC Request No. 05910504 (December 30, 1991) (endorsement
of administrative judges' use of their discretionary authority under
29 C.F.R. Part 1613 to obtain additional evidence needed to make an
informed determination on a proposed class). Use of either approach
would have permitted the AJ in the instant case to make a more informed
decision on the question of numerosity and, thereby, possibly to have
shortened significantly the protracted nature of this litigation.
In some cases, the latter approach may be preferable because it could
provide administrative judges with an additional opportunity to assess
whether the agent of the class and his or her attorney would fairly
and adequately protect the interests of the class as required by 29
C.F.R. �1614.204(a)(2)(iv).
Based on the totality of circumstances above, the Commission finds
incorrect the previous decision's finding that the numerosity requirement
for a class complaint has not been met in this case.
Timeliness of the EEO Counselor Contact
The recommended decision concluded that without more information to
justify an extension of the time period for EEO counselor contact, the
AJ could not recommend a finding that the contact was timely. The agency
adopted the RD in its final agency decision. Accordingly, the timeliness
of the appellant's EEO counselor contact was at issue on appeal.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action. The 45-day
time limitation is applicable to class complaints as well as to individual
complaints of discrimination. 29 C.F.R. �1614.204(d)(2). EEOC Regulation
29 C.F.R. �1614.204(d)(2) further provides, however, the 45-day time
limitation for seeking counseling may be extended in accordance with
the provisions set forth in 29 C.F.R. ��1614.105(a)(2) and 1614.604.
The appellant first contacted an EEO counselor on October 15,
1993. However, it is not clear from the record why the appellant first
suspected discrimination at that point in time. Based on the evidence of
record, it appears that the appellant should have suspected discrimination
as early as April 1991. That month the timekeeper for the LMD allegedly
learned in timekeeper training that all offices in the agency, including
the Office of Administrative Services of which the LMD was a part, were
receiving night differential pay pursuant to a February 28, 1983 decision
of the Comptroller General. The appellant knew in April 1991 that the LMD
employees had not been receiving the night differential pay to which they
believed they were entitled under the Comptroller General's decision.
Presumedly the appellant also knew in April 1991 that most of the LMD
employees were black, whereas most of the other employees in the Office
of Administrative Services and in the agency's other offices were white.
Limitations on Back Pay and Monetary Relief
However, even if the appellant's EEO counselor contact should be
deemed timely pursuant to one or more of the provisions set forth
in 29 C.F.R. ��1614.105(a)(2) and 1614.604, and even if class-wide
discrimination were to be proven, it appears that no additional relief
could be granted to the LMD employees under 29 C.F.R. Part 1614 due to
statutory limitations on remedy.
Section 706(g)(1) of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e-5(g)(1), provides in relevant part:
Back pay liability shall not accrue from a date more than two years
prior to the filing of a charge with the Commission.
The two year limitation on back pay liability is applicable to complaints
of employment discrimination by Federal agencies under section 717 (d)
of Title VII, 42 U.S.C. 2000e-16(d). See 29 C.F.R. ��1614.501(b)(3)
and (c)(1) and 1614.204(l).
The class complaint was filed on December 16, 1993. Thus, even if
class-wide discrimination based on race were proven, back pay could be
awarded to individual class members no further back than December 16,
1991. E.E.O.C. v. O & G Spring and Wire Forms Specialty Co., 38 F.3d
872, 880 (7th Cir. 1994); E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815,
819 (7th Cir. 1990); and Bereda v. Pickering Creek Industrial Park,
Inc., 865 F.2d 49, 54 (3d Cir. 1989). The September 23, 1992 memoranda
indicate that the agency paid LMD employees night differential pay, with
interest and FLSA (if applicable), for 1988-1991. Thus, it appears that
no back pay could be awarded the LMD employees if the class complaint
were allowed to go forward.
Pursuant to subsection 102(b)1) of the Civil Rights Act of 1991, 42
U.S.C. 1981a(b)(1), a complainant may not recover punitive damages from
a governmental entity.
Compensatory damages are authorized only for acts of discrimination
which occurred on November 21, 1991 or thereafter. Landgraf v. USI Film
Products, 511 U.S. 244, 286 (1994).
Because it appears that no relief could be granted to the LMD employees
in this case due to the three statutory limitations on remedial relief,
it is the decision of the Commission to affirm the agency's dismissal
of the class complaint.
CONCLUSION
For the reasons explained above, the Commission grants the appellant's
request for reconsideration pursuant to 29 C.F.R. �1614.407(c)(2), and
also reconsiders portions of the previous decision on its own motion.
Based on a review of the entire record, it is the decision of the
Commission to AFFIRM the agency's dismissal of the class complaint,
albeit for different reasons than those specifically addressed in the
Commission's previous decision.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 5, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
1The recommended decision indicated that if the appellant intended
to pursue any of the other bases he had checked on the formal
complaint form (sex and age), the resultant subclasses would be
even smaller. However, it is clear from the appellant's request
statement that he is pursuing solely a claim of discrimination
based on race.
2In an untimely appeal statement, the appellant represented that his
records showed he received the notice of his right to file a formal
complaint on December 6, 1993. The appellant also represented that
the local Post Office had confirmed that he had picked up the notice on
December 6, 1993, and that he then verified that the agency's records
contained the return receipt requested card which showed a December 6,
1993 receipt date.