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

Equal Employment Opportunity CommissionMay 8, 2003
01A20184_r (E.E.O.C. May. 8, 2003)

01A20184_r

05-08-2003

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


Christina Fontana, et al. v. United States Postal Service

01A20184

May 8, 2003

.

Christina Fontana, et al.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A20184

Agency No. CC-021-0074-00

Hearing No. 160-A1-8105X

DECISION

Complainant, a part-time employee at the agency's General Mail Facility

(GMF) in Boston, filed a class complaint of employment discrimination

alleging harm on the basis of age in violation of the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

On August 2, 2001, an EEOC Administrative Judge (AJ) issued a decision

dismissing the class complaint on the grounds that it did not meet

the numerosity requirement set forth in 29 C.F.R. � 1614.204(a)(2)(i).

On August 22, 2001, the agency issued a final action adopting the AJ's

decision not to certify the class. In its decision, the agency notified

complainant that her complaint was accepted as an individual complaint

of discrimination.

BACKGROUND

In her complaint, complainant alleged that all part-time distribution

clerks on Tour 3 in the agency's Boston GMF were discriminated against

on the basis of age when their positions were abolished by the agency.

Complainant listed eleven other class members in her formal complaint.

The agency produced its own list of employees affected by the abolished

positions. The agency stated that complainant and nineteen other Tour

3 part-time regular distribution clerks (PTRs) over the age of 40 were

informed on August 17, 2000, that their positions would be abolished

effective September 2, 2000. The agency noted that on August 18, 2000,

four Tour 3 positions were established and four of the excessed PTRs

were offered these positions.

In its �Opposition to Class Certification,� the agency argued that the

class complaint lacked numerosity. The agency stated that the putative

class includes just sixteen persons, not including the four persons who

were senior bidders on the four new PTR positions. The agency argued that

the size of this class is too small to justify certification. Further,

the agency argued that complainant failed to satisfy the commonality

and typicality requirements. Specifically, the agency claimed that

complainant cannot show that there is a discriminatory policy in

place since all twenty PTR positions on Tour 3 were abolished due to

automation in accordance with negotiated collective bargaining procedures.

The agency explained that the procedures at issue were applied to all

affected employees regardless of age.

In his decision regarding class certification, the AJ noted that

complainant claimed that twenty part-time distribution clerks on Tour

3 were being discriminated against on the basis of their age when their

positions were abolished by the agency. The AJ found that the class met

the commonality requirement in that all members of the class were affected

by a singular employment personnel decision and all members of the class

were over forty years of age and all held the same job occupation. The AJ

also found that typicality and adequacy of representation were satisfied.

However, the AJ denied certification on the grounds that the class

failed to establish numerosity. The AJ noted that the class �complaint

concerns a limited identifiable number of part-time distribution clerks[,]

employed within a small work area at the [a]gency's Boston GMF facility,

and involves a manageable number of employees,� such that consolidated

joinder of all class members as individual complainants �would not be

impracticable.� The AJ also noted that the class agent �even argues

. . . that the class is limited to the 16-20 identified class members

and that there are not other potential class members.�

On appeal, complainant argues that the putative class of twenty part-time

distribution clerks is sufficiently numerous to meet the certification

requirements. Complainant claims that consolidation of individual

complaints would be impracticable because each member of the class would

be required to file an individual complaint, which would entail multiple

filings, multiple discovery and potentially multiple adjudications.

ANALYSIS AND FINDINGS

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).

When determining whether numerosity exits, 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, Sr., et al. 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. Mastren,

et al. v. United States Postal Services, EEOC Request No. 05930253

(October 27, 1993); Harris v. United States Postal Service, EEOC Appeal

No. 01994220 (March 14, 2002) (class of 30 members from the same facility,

in addition to 15 more identified on appeal, insufficient to establish

numerosity).

In the present case, the record reveals only, at most, twenty potential

class members who were allegedly affected by the abolishment of the

positions at issue. All twenty potential class members work in the

same facility. The class agent presents no evidence showing that it

would be impractical to consolidate the twenty individual claims. Thus,

we find that the class complaint fails to meet the numerosity requirement

set forth in 29 C.F.R. � 1614.204(a)(2)(i) and we find that the agency

properly dismissed the class complaint.

The agency has stated that it will be processing complainant's individual

complaint. The agency should also notify the other named members of the

class complaint that they may file individual complaints. If some of

the individuals file such complaints, then the agency should consider

consolidating all of the individual complaints pursuant to 29 C.F.R. �

1614.606.

CONCLUSION

The agency's final action to dismiss the class complaint and to continue

processing complainant's complaint as an individual complaint<1>

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

May 8, 2003

__________________

Date

1The agency may wish to consider whether

complainant is alleging a disparate impact claim in her individual

complaint.