01a42449
09-01-2005
Vincent C. White, et al, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Vincent C. White, et al v. Department of the Air Force
01A42449
September 1, 2005
.
Vincent C. White, et al,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A42449
Agency No. EB-1M-01006
Hearing No. 340-A2-3508X
DECISION
Complainant, as class agent, filed a timely appeal concerning the
captioned EEO class complaint, wherein he claims unlawful employment
discrimination pursuant to Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, an applicant for employment at the agency's Edwards Air
Force Base facility, filed an individual complaint on September 5,
2001, claiming discrimination on the bases of race (African-American),
sex (male), and in reprisal for prior protected activity, regarding his
non-selection for six positions. The agency investigated the complaint,
and provided complainant with a report of investigation, and complainant
requested a hearing before an EEOC Administrative Judge (AJ).
While this matter was before the AJ, complainant filed a motion to amend
his individual complaint to additionally raise a class action claim. The
AJ ordered discovery on the issue of class certification. On February 5,
2004, the AJ issued a decision, finding that complainant failed to satisfy
the requirements for class certification.<1> Complainant filed the
instant appeal on February 17, 2004, and the agency submitted a response.
It does not appear that the agency issued a final order in this matter,
and the AJ's decision is therefore final. See 29 C.F.R. � 1614.110(a).
In his decision, the AJ determined that complainant sought to certify
a class defined as �all minority external and internal applicants,
including former employees, that applied for any accounting position,
between 1999 to 2003, at Edwards Air Force [Base] location, similar
to the complainant in Turner v. Department of Veterans Affairs, EEOC
Appeal No. 01971966 (August 2001).� In a footnote, the AJ indicated
that the Turner case concerned a complainant, an agency employee, who
sought to represent black males, black male disabled veterans, and black
males with a POW family member, who were current or former employees,
or who have applied for positions at a named agency facility.
The AJ found that complainant named 4 sub-classes, each containing
between 16 to 24 members, who applied for the following positions:
accounting technician positions in 2000; accounting technician positions
in 2001; contract negotiator positions in 2000; and accounting financial
management analyst positions in 2001. The AJ found that complainant
applied for the accounting technician and contract negotiator positions
in 2000, and for accounting technician and financial management analyst
positions in 2001. However, the AJ determined that complainant did not
identify the race of any one in the class; and that complainant provided
neither an explanation as to how the agency discriminated against them,
nor a statement from any proposed class member.
In addition to the above class, the AJ indicated that complainant also
sought to represent minorities in all job categories (professional,
administrative, technical, clerical, other, and blue collar), on the
theory that they are being discriminated against under the agency's
Affirmative Employment Plan (AEP), from 1999 to 2003. However,
the AJ found that complainant did not identify any specific hirings
or promotions; did not identify any members of the proposed class,
to include their race; and did not provide any statements from the
proposed class. The AJ indicated that complainant provided statistical
information from the AEP, for 2000 to 2001, showing the number of
minorities employed in all job classifications at Edwards Air Force Base;
and that while the statistical information reflected that the number of
minorities was increasing, the majority of the positions were encumbered
by non-minority individuals. The AJ also found that the record contained
no data to describe the applicant pool for these positions.
The AJ determined that complainant failed to satisfy the numerosity
requirement. Specifically, the AJ found that complainant failed to
present any evidence to show which of the 16 to 24 individuals in each
group who purportedly applied for one of the identified jobs were internal
or external applicants, or any evidence that these individuals felt they
were discriminated against by the non-selection.
Regarding the AEP claim, the AJ found that complainant failed to identify
any class member by name, or present evidence of any interest by any of
these individuals in pursuing a discrimination complaint. Additionally,
the AJ found that regarding the entire class, complainant presented no
evidence as to race. The AJ found that by simply alleging the race of
the class members and/or their allegedly low representation in various
job categories, without more, is not sufficient to satisfy numerosity
for any of the identified job categories.
Next, the AJ determined that complainant failed to satisfy the commonality
and typicality requirements. Specifically, the AJ found that complainant
sought to certify a class consisting of 4 specific subclasses concerning
the positions relating to his own non-selection claims, as well as
the other unrelated job categories in his AEP claim. Regarding the
AEP-based claim, the AJ found that complainant presented no evidence that
any of the employees in these categories applied for the same positions
as did complainant. The AJ further found that complainant presented no
evidence that the applications of internal candidates underwent the
same selection process as that of complainant, who was an external
candidate. The AJ found a lack of any anecdotal evidence to show
that complainant's interests, and those of the individuals reflected
in the AEP, are inter-related. The AJ concluded that complainant did
not establish commonality or typicality as to these groups.
As to the 4 subclasses, the AJ noted that complainant claimed that
minority, or non-white applicants were not hired because of the following
employment policies/practices:
1. Rounding-down the rating score of minorities;
2. Inconsistencies on the ratings;
3. Recruitment;
4. No credit for college experience; and
5. Considering prior military and federal government experience.
The AJ indicated that complainant alleged that a core of agency
officials, including nine named agency officials, were responsible for
the discriminatory non-selections. The AJ indicated that complainant
identified them as all supervisors having hiring authority who did not
hire minorities identified as under-represented in the AEP.
In addressing these contentions, the AJ found that recruitment could
not have been a problem. The AJ specifically determined that each
member of the proposed class applied for the position(s) at issue,
noting that complainant presented no evidence of a class member who did
not have the opportunity to apply because of discriminatory recruitment.
As to the remainder of the policies/practices identified by complainant,
the AJ determined that there was no evidence of common facts between
the proposed class and the alleged discriminatory policies/practices.
The AJ noted that the record lacked even an identification of the
race of class members, precluding a determination as to minority
status. Additionally, the AJ found that the record showed that
twelve of the proposed class members identified by complainant as not
selected were actually hired by the agency. The AJ further found that
complainant presented no evidence regarding which of the identified
alleged discriminatory policies/practices affected him or, how the
policies/practices more favorably affected non-minority candidates.
The AJ rejected the class complaint for failing to satisfy the class
action criteria, and determined that complainant's individual complaint
should proceed.
Both parties submitted detailed appeal statements which were fully
considered in the rendering of the decision herein.
An individual seeking to maintain a class action is required to meet the
"prerequisites of numerosity, commonality, typicality, and adequacy of
representation" set forth at 29 C.F.R. � 1614.204(a)(2). This section,
which is an adoption of Rule 23(a) of the Federal Rules of Civil
Procedure, provides that the agency may reject a class complaint if any
one of these prerequisites is not met. See 29 C.F.R. � 1614.204(d)(2).
In addressing a class complaint, it is important to resolve the
requirements of commonality and typicality prior to addressing numerosity
in order to "determine the appropriate parameters and the size of the
membership of the resulting class." See Moten v. Federal Energy Regulatory
Commission, EEOC Request No. 05960233 (April 8, 1997) (citing Harris
v. Pan American World Airways, 74 F.R.D. 25, 45 (N.D. Cal. 1977)).
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. See General Telephone Company
of the Southwest v. Falcon, 457 U.S. 147 (1982). In application, the
commonality and typicality prerequisites tend to merge and are often
indistinguishable. Id. Commonality requires that there be questions of
fact common to the class. The class agent must, therefore, establish
some evidentiary basis from which one could reasonably infer the operation
of an overriding policy or practice of discrimination. This can be done
through allegations of specific incidents of discrimination, supporting
affidavits containing anecdotal testimony from other employees against
whom an employer allegedly discriminated in the same manner as the class
agents, and evidence of specific adverse actions taken. See Mastren
v. United States Postal Service, EEOC Request No. 05930253 (October
27, 1993).
Mere conclusory allegations, standing alone, do not show commonality. A
class agent must specifically identify facts common to the class.
See Mastren, EEOC Request No. 05930253. Typicality requires that
the claims of the class agent be typical of the claims of the class.
The overriding typicality principle is that the interests of the class
members must be fairly encompassed within the class agent's claim.
See Falcon, 457 U.S. at 160.
We concur with the AJ's conclusion that complainant failed to satisfy
the commonality and typicality elements. Regarding the AEP claims, we
find that complainant, an external applicant, failed to submit evidence
showing that his interest in being selected for an accounting position
at Edwards Air Force Base, was the same interest as the employees in
the unrelated job categories identified on the AEP. More specifically,
complainant presents no evidence that any current or former minority
employee of the agency, reflected in the AEP statistical profile, was
qualified for the same accounting positions complainant applied for.
Even assuming that some of the applicants for the positions at issue
were from current employees, and that they were qualified, there is no
evidence that they underwent the same selection process as complainant,
an external candidate. Furthermore, even if there were non-white employee
applicants, the record contains no statement from any such individual
reflecting a belief that their non-selection was discriminatory in the
same manner as claimed by complainant.
Regarding complainant's claim as to the external application process,
we find that complainant's contention that agency selection officials
manipulated the five elements of the selection process he identifies
is speculative. We concur with the AJ that recruitment could not have
been manipulated as claimed given that the proposed class consists
of minority individuals who did, in fact, apply for the positions at
issue. As to the purported manipulation of the other four elements,
complainant's contention is predicated upon his own personal evaluation
of the applications of the white selectees. Complainant assumes that
the applications were so deficient that the selectees were chosen because
they were white, requiring a manipulation of these elements. We find
this reasoning to be speculative in nature, and discount it accordingly.
Moreover, we concur with the AJ that the primary reason that complainant
fails to establish commonality or typicality is complainant's failure to
provide evidence identifying the race of the proposed class members.
In this case, complainant is representing a class of minority,
or non-white, applicants for the accounting positions at issue,
yet cannot demonstrate that the non-selected candidates were minority
or non-whites.<2> An affidavit from an agency official reflects that
while the agency provided complainant with the names of all applicants,
and the race of the selected candidates, it had no information regarding
the race of the non-selected applicants. Instead, the record reflects
that complainant assumes that all of the unsuccessful candidates for
the positions at issue are minority based on the AEP statistics showing
that these positions are overwhelmingly encumbered by whites, along
with his own evaluation of the deficiencies in the qualifications of the
white selectees. However, we find that this assumption is speculative.
There is nothing in the record to suggest that complainant attempted
to ascertain the race of the non-selected applicants, or to obtain a
statements from even one non-selected applicant to show that anyone else
believed their non-selection was discriminatory in the same manner as
claimed by complainant.
Complainant maintains that he does not have to identify the race of
the class members to demonstrate commonality and typicality. Under the
circumstances of this case, we disagree. Here, beyond speculation,
there is no information whatsoever about the race of the non-selected
applicants. Similarly, there is also no information whatsoever as to
whether the non-selected applicants considered themselves aggrieved in
the same manner as claimed by complainant. Without some way of reliably
showing that the proposed class consists of members who are non-white,
and that at least some of them believed that their non-selection was
race-based, complainant cannot demonstrate commonality and typicality.
Accordingly, we conclude that complainant failed to satisfy the regulatory
criteria to establish commonality and typicality.
Numerosity
Numerosity requires that the putative class be so large as to make
joinder impractical. See 29 C.F.R. � 1614.204(a)(2)(i). No set
number is required, and each case is evaluated on its own circumstances.
See General Telephone Company v. Equal Employment Opportunity Commission,
446 U.S. 318, 330 (1980). Considerations include the number of class
members, the location and dispersion of class members, the ease of
identifying class members and any other factors which would indicate a
substantial hardship in the class members participation in the complaint.
See Martin v. U.S. Postal Service, EEOC Request No. 05920003 (December
19, 1991). The exact number of class members need not be shown prior to
certification, but some showing must be made of the number of individuals
affected by the alleged discriminatory practices who therefore may assert
a claim. See Moten, supra.
According to the record, 75 applications from all sources were submitted
for the six positions at issue, with a total of 68 applicants. Of these,
12 applicants were selected for employment: 6 selectees are white, and
6 selectees are non-white. The record reflects that, with the exception
of complainant, the agency has no information regarding the race of the
56 candidates who were not selected. Complainant acknowledges that he
does not know the race of these individuals. Without more than mere
speculation regarding the race of those not selected, so as to be able to
identify them as class members, complainant cannot demonstrate numerosity.
Furthermore, complainant presents no evidence to show that joinder would
be impractical. Accordingly, we conclude that complainant failed to
satisfy the regulatory criteria to establish numerosity.
For the reasons set forth above, we find that the agency properly
dismissed the class complaint for failing to satisfy the regulatory
criteria, and we AFFIRM that determination.
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 1, 2005
__________________
Date
1The AJ issued a revised decision on March
2, 2004, to include a �Notice Section� inadvertently omitted from the
first decision.
2We note that complainant's race is African-American, and he does not
define what he means by either �minority� or �non-white.�