01A11364_r
09-26-2002
Bobby Lacy, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bobby Lacy, et al. v. United States Postal Service
01A11364
September 26, 2002
.
Bobby Lacy, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11364
Agency No. CC-291-0011-00
Hearing No. 140-A0-8338X
DECISION
INTRODUCTION
Complainant appealed to this Commission from the agency's final order
concerning his class complaint of unlawful employment discrimination.
Complainant alleged discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The agency's final order, dated
November 8, 2000, implemented an EEOC Administrative Judge's (AJ's)
decision to dismiss complainant's proposed class complaint for failure
to meet class complaint certification prerequisites.
BACKGROUND
To obtain a promotion from the mechanic craft in the agency's Florence
Processing and Distribution Facility, candidates must take a written test,
undergo a �panel evaluation,� and submit to a supervisor's evaluation.
A composite �score� is calculated from this process, to determine who
is eligible for promotion.
To pass the written test, all candidates must exhibit proficiency
in the �Knowledge, Skills, and Abilities� (KSA's) required to obtain
the particular position being sought. If candidates fail any portion
of the test, they are notified of the KSA's failed. Applicants may
update their test scores by showing proficiency in the failed KSA's
through successfully completed training, formal education, or experience.
According to the agency, the scores cannot be updated until the applicant
shows proficiency in all of the KSA's originally failed.
Complainant is a PS-05 Maintenance Mechanic at the agency's Florence
Processing and Distribution Facility. He sought EEO counseling to
address discrimination against a class of African-American employees
at the facility who are denied the right to update their written test
scores when they complete approved courses.<1> Complainant contends that
this denial prevents African-American employees from being placed on the
promotion register. In his formal complaint, complainant added the bases
of sex (male) and age. He alleged individual harm when on January 12,
2000, he was denied the right to update his test scores.
Complainant's class complaint was forwarded to an AJ for a certification
determination pursuant to EEOC Regulation 29 C.F.R. � 1614.204. The AJ
found that the proposed class lacked all four requirements for class
complaint certification: numerosity, commonality, typicality, and adequacy
of representation. Although complainant listed nine other employees from
various crafts as potential class members, only one of these employees
was denied an opportunity to update his score.<2> The AJ found that this
potential class, consisting of two members, was not too large or unwieldy
to adjudicate individually, and did not meet numerosity requirements.
In its final order, the agency adopted the AJ's findings to deny class
complaint certification. It also remanded complainant's individual
claim for processing as a separate, individual complaint.
On appeal, complainant argues that he did not receive proper
representation because his lawyer was out of the country while the class
complaint was pending with the AJ. None of complainant's submissions
on appeal were prepared by complainant's attorney, and there is no
mention of his attorney's current status. Complainant contends that the
information presented by the agency was �not only inaccurate, but also
false.� Nonetheless, complainant presents no statistics, affidavits,
statements, or other evidence to challenge the factual record.
ANALYSIS AND FINDINGS
Under EEOC Regulations, a class complaint must allege: (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 these certification prerequisites are not met.
See Garcia v. Department of Justice, EEOC Request No. 05960870 (October
10, 1998).
To establish numerosity, a class complaint must allege that the class
is so numerous that a consolidated complaint concerning the individual
class members is impractical. See 29 C.F.R. � 1614.204(a)(2)(i).
When determining whether numerosity exists, 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 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 v. United
States Postal Service, EEOC Request No. 05930253 (October 27, 1993).
Only one other African-American employee has been denied an upgrade
request since 1999. According to the record, one African-American
employee was denied two requested test score upgrades in 1998, but the
Commission previously addressed this individual's claim. See Williams,
Jr. v. United States Postal Service, EEOC Appeal No. 01991876
(December 20, 2001) (finding no discrimination from agency ranking
complainant �ineligible� on KSA's, but finding discrimination from the
supervisor's refusal to evaluate complainant in accordance with the
promotion procedures). Complainant names eight other African-American
men who he claims are potential class members. However, complainant
never identifies the age of these employees. It is also unclear from the
record whether the three Caucasians denied an opportunity to upgrade fall
within the class on the bases of sex or age.<3> Even assuming that the
eight employees named by complainant, and the three Caucasian employees
identified by the agency all shared at least one of the bases listed in
the class complaint, their numbers are insufficient to meet numerosity.
See Harris v. United States Postal Service, EEOC Appeal No. 01994220
(March 15, 2002) (finding no numerosity in class of �four to six�
members, with fifteen additional potential members); Kennedy v. National
Aeronautics and Space Administration, EEOC Appeal No. 01993626 (April 26,
2001) (�A group of six complaints can readily be consolidated�).
Further, all of the employees work at the same facility, and the list
of potential class members is readily identifiable. See Fusilier, et
al. v. Department of the Treasury, EEOC Appeal No. 01A14312 (February
22, 2002) (finding no numerosity for class of seven auditors working
in same office, for same management). Complainant has presented
nothing to indicate that the joinder of the potential class members'
individual claims would be impractical. Therefore, the Commission
finds that complainant's class complaint should not be certified on any
basis because it lacks numerosity.<4> Complainant's individual claim,
as outlined in the agency's final order, must be processed as a separate
complaint in accordance with 29 C.F.R. � 1614.204(d)(7).
CONCLUSION
The agency's decision denying certification of the class complaint
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 26, 2002
__________________
Date
1Complainant was a named party in a prior class
action filed in federal district court. See Williams, Jr. v. Henderson,
Civil Action No. 99-0552 (D. SC, filed March 1, 1999). This class action,
alleging race discrimination, challenged portions of the promotion process
for maintenance employees at the Florence Processing and Distribution
Facility, but did not address the agency's failure to update written
test scores.
2The agency showed that four employees have attempted to update their
scores since 1999 � three Caucasian and one African-American. These
employees made a total of six requests. Five of the requests were
denied because the applicants did not exhibit proficiency in all of the
originally failed KSA's.
3Obviously, these employees could not participate in the class on the
basis of race (African-American).
4The Commission finds no reason to address whether complainant met the
other prerequisites for class complaint certification.