Bobby Lacy, et al., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A11364_r (E.E.O.C. Sep. 26, 2002)

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.