0120141242
03-30-2015
Complainant 1, et al.,1 Complainant 1, et al.,1 Complainants, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
Complainant 1, et al.,1
Complainants,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal Nos. 0120141231, 0120141151, 0120141226, 0120141227,
0120141228, 0120141229, 0120141230, 0120141232, 0120141233,
0120141239, 0120141240, 0120141241, 0120141242, 0120142556
Hearing No. 480-2012-00682X
Agency No. PE-FY11-012
DECISION
On February 6, 2014, Complainant 1 filed an appeal from the Agency's January 3, 2014, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly determined that the proposed class should not be certified under 29 C.F.R. � 1614.204(a).
BACKGROU3
At the time of events giving rise to this complaint, Complainant 1 (the Class Agent) worked as an Assistant Principal at Seoul American Elementary School in South Korea. On April 13, 2012, Complainant 1 filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), and sex (male) when, in 2010 and 2011, he was not selected for Principal positions at Daegu High School, Daegu American School, Osan Middle School, and Seoul American Elementary School, all in South Korea, as well as at Burrows Elementary School in Quantico, Virginia. Complainant 1 claimed the Agency had a practice of not installing black males2 in Principal positions in South Korea.
Accompanying Complainant 1's formal complaint was a letter from his attorney in which he moved for class certification under 29 C.F.R. � 1614.204(b), "in light of the clear class implications" in his complaint. The Agency referred the complaint to an EEOC Administrative Judge (AJ) for a decision regarding certification of the class action, pursuant to 29 C.F.R. � 1614.204(d).
Complainant 1's representative filed a Motion for Class Certification with the AJ on July 1, 2012. On August 24, 2012, Complainant 1's representative filed a Motion for Leave to Amend and Consolidate, in which he moved to amend the pending class complaint with the complaints of Complainant 7 and Complainant 5, and notified the AJ of the filing of informal complaints for Complainants 11 and 13.
In his Brief of Class Agent, submitted to the AJ on January 14, 2013, the class representative argued that the class consisted of "African-American and non-African-American employees of DoDEA who have been subjected to one or more aspects of the systemic race discrimination described in this Complaint, including, but not limited to: (a) discriminatory practices, policies and/or procedures in selection, promotion or advancement; (b) disparate pay; (c) a hostile work environment and race-based harassment; and (d) retaliation in the workplace." He also alleged that there was a pattern of discrimination against disabled individuals, as well as a pattern of discrimination based on reprisal for engaging in protected EEO activity.
On January 16, 2013, the class representative submitted a Motion to Stay Three Simultaneous Proceedings Pending Decision on Class-Certification Request, in which he argued that the individual EEOC hearing requests on the complaints of Complainants 10, 3, and a third complainant (who is not part of this action on appeal) should be stayed until the class-certification matter was resolved.
On January 18, 2013, the Agency submitted an Opposition to Class Certification and Motion to Dismiss. On February 5, 2013, the Agency filed its Supplemental Brief, Agency Opposition to Class Certification and Motion to Dismiss. The Agency argued that several of the Complainants whom the class representative had moved for class inclusion had not filed complaints which detailed bases that were common to the class of Black males, or claims which involved non-promotion. It argued that the proposed class did not meet the requirements of commonality or typicality, stating, "The class agent has utterly failed to make any connection in law or fact tying together these dozens of responsible management officials and their alleged discriminatory actions to any meaningful theory of commonality or typicality to support class certification."
On March 1, 2013, the class representative filed a Memorandum amending the class complaint, with a motion to remove one proposed class member and to extend the time for Complainant's response to the Agency's Brief. On March 18, 2013, the class representative submitted a Motion to add 3 more complainants to the class: Complainants 5, 8, and 6.
On April 24, 2013, the class representative responded to the Agency's Motion to Dismiss. In his brief, he stated of the current, former, or prospective employees of the Agency in the proposed class: "Though they allege varying forms of discrimination based on age, gender, race, and/or disability, their complaints are unified in demonstrating a culture of retaliation that stonewalls advancement and fosters hostile work environments for complainants who even raise the specter of discrimination within the agency." He additionally claimed that the same administrators were "complicit" in the retaliation, and listed five different administrators in a wide variety of positions and locations within the Agency.
On May 13, 2013, the Agency filed its Second Supplemental Brief, Agency Opposition to Class Certification and Motion to Dismiss. It argued that, despite the class representative's revised argument that the class was based on a culture of retaliation, the requirements of commonality and typicality still were not met. It noted that Class Agent 1 had not even alleged reprisal in his original complaint, and neither had Complainants 2 and 9. It argued that, of the Agency managers named, one was involved with the case of 10, one was involved with the case of 13, one could only be connected to those complaints which arose in Europe but not those in the Pacific region, and one was not actually tied to any of the named Complainants in their complaints.
The AJ assigned to the class-certification request issued a decision on September 23, 2013, served on the parties on November 19, 2013, in which he responded to the Motions and Briefs of the parties, and denied the request to certify the class. The AJ found that the putative class failed to satisfy the elements of numerosity, typicality, and commonality.
The AJ first detailed each of the 15 members of the proposed class, including their allegations and claimed bases of discrimination. As can be seen in the chart below, each of the Complainants asserted claims with different bases and different issues, at different Agency locations.
Complainant
Bases alleged Issues alleged Location 1
Race (African American), color, sex (M) Non-selection for Principal positions South Korea; Quantico, Virginia 2
Race (African American), color, sex (F), age Teaching position was eliminated Daegu High School, South Korea 3
Age, retaliation Harassment; forced to retire Zama High School, Japan 4
Race (African American), color, sex (M), retaliation Hostile work environment; Letter of Concern issued Shape High School, Belgium 5
Race (African American), color, sex (F), age, retaliation Non-selection for English Teacher positions Fort Campbell, Kentucky 6
Not specified, no formal complaint filed (but likely race and retaliation) Placed on a Performance Improvement Plan Holbrook Elementary School, North Carolina 7
Race (African-
American), color (Black), sex (F), age, retaliation Dismissed when institution from which she obtained degree was no longer recognized by Agency as an accredited institution Japan 8
Retaliation Non-selection for teaching and counseling positions Various locations in the U.S. 9
Race (African American), sex (F), age Non-selection for Principal position Alabama 10
Race (African American), retaliation Placed on a Performance Improvement Plan; reassigned to different school; Letter of Reprimand Japan 11
Race (African American), color, age, retaliation Reassigned to different classroom; harassment Seoul Elementary School, South Korea 12
Disability, age Placed on a Performance Improvement Plan; reassigned to different classroom Shape High School, Belgium 13
Race (African American), color, age, retaliation Accused of abusing a student; suspension Daegu High School, South Korea 14
Race (African American), color, age, retaliation Letter of Concern; employment terminated Aviano Elementary School, Italy 15 (did not file an appeal) Disability, age, retaliation Denial of reasonable accommodation; termination Sullivan Elementary School, Japan
The AJ then found that the class complaint failed to meet the requirement of numerosity, because the class was not so large that the consolidation of the individual complaints would be impractical. The AJ found that, under the Class Agent's first proposed definition of the class, "African-American and non-African-American employees of DoDEA who have been subjected to one or more aspects of the systemic race discrimination described in this Complaint," there were 12 members who belonged to the class. Under the Class Agent's revised definition of the class, Agency employees who had been subjected to acts of retaliation through the Agency's "culture of retaliation," only 10 of the 15 members of the proposed class had alleged that they had been subjected to retaliation, not including the identified Class Agent. The AJ concluded that, under either proposed definition of the class, the number of proposed members was too small to warrant class certification.
The AJ found that the class failed to meet the requirement of commonality, as "the only attribute that all twelve members [of the initial proposed class] possessed was that they were current or former Agency employees." There was no allegation of a common basis for discrimination nor was there a commonly shared adverse action. Claims ranged from non-selections, to terminations and suspensions, to Performance Improvement Plans, to harassment. Only two Complainants claimed that the same Agency manager was involved in their adverse actions. The AJ found that the class representative substantially altered his proposed basis of commonality for the class in his April 24, 2013, brief, contending only that each had been subjected to a "culture of retaliation." The AJ concluded that, even had all 15 Complainants alleged retaliation in their individual complaints (which they had not), "the allegedly retaliatory actions and practices are of various kinds and their impact upon each class member varies significantly," and that the proposed class therefore failed to establish commonality.
The AJ found as well that the Class Agent did not possess the same interest and suffer the same injury as the other proposed class members. Complainant 1 alleged discriminatory non-selections, while other class members claimed disciplinary actions, worksite reassignments, involuntary transfers, suspensions, terminations, or hostile work environment. The AJ noted that the fifteen proposed class members were subjected to "widely divergent types of adverse treatment from at least twelve different school administrators in five different countries, including five different states within the United States." The AJ found that there was no evidence that the administrators from the different schools and regions were acting under any common policy or practice and that, accordingly, the proposed class failed to establish the requirement of typicality.
The Agency issued a final order on January 3, 2014, in which it implemented the AJ's decision and notified each complainant that his or her individual complaint would be reinstated for processing from the point processing ceased when the Motion to certify the class was filed. Complainants each filed individual appeals from the Agency's final order.
CONTENTIONS ON APPEAL
On appeal, the Class Agent's representative submitted an argument in which he claimed that the class should be certified because there was a general culture and policy of retaliation at the Agency. He argued that the requirement of numerosity was not defeated because, although there were only 14 named Class Agents (these Complainants), the "scope of the entire class" was much larger, although he did not specify any actual estimate of class members. He claimed that the "Class Representatives are only the tip of the iceberg of scores of minority Agency educators entrapped in discriminatory/retaliatory regimes under an EEO-enforcement division that rewards proven violators of Title VII and punishes the violators' victims." The class representative disputed that the proposed definitions of the class were insufficient to meet the requirements of class certification, disputed that he had "abandoned" his original definition of the class in favor of a class based only on retaliation, and argued that the class satisfied the requirement of commonality through a "general policy of discrimination."
The Agency submitted a brief in opposition to Complainant's appeal in which it argued that the decision of the AJ not to certify the class should be affirmed. It claimed that the factual assertions made by Complainant in his brief are unsupported by the record, that Complainant was unable to support the proposition that there were far more potential class members than those named as the 14 class agents, and that he is unable to point to any policy or procedure that has had an adverse impact on each putative class member. "The class representative has merely gathered any EEO complainant that agrees to be represented by the class representative, and attempted to form a class made up of individuals with diverse bases for EEO complaint filing for diverse actions related to their employment."
The class representative filed a reply to the Agency's opposition in which he argued that the Agency is in violation of internal Agency EEO Directives, Policy Memorandums, Equal Opportunity Policy Statements, the EEO regulations, and the Administrative Procedure Act. He again argued that the class could meet the numerosity requirement, and that a class based on claims of discriminatory hiring and promotions, disparate pay, and harassment is not such a radically different definition of a class based on retaliation for advancing those claims.
ANALYSIS AND FINDINGS
The AJ found in his decision that the class representative had advanced two different formulations of the class to be certified, either a class of "African-American and non-African-American employees of DoDEA who have been subjected to one or more aspects of the systemic race discrimination described in this Complaint," or Agency employees who had been subjected to acts of retaliation through the Agency's "culture of retaliation." The class representative does little to narrow and clarify the definition of the class in either of his pleadings in support of his appeal, although his arguments primarily focus on establishing that a general policy and culture of retaliation existed at the Agency towards those employees who would assert their EEO rights.
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. General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156-57 (1982). The putative class agent must establish an evidentiary basis from which one could reasonably infer the operation of an overriding policy or practice of discrimination. Garcia v. Dep't of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003). Generally, this can be accomplished through allegations of specific incidents of discrimination, supporting affidavits containing anecdotal testimony from other employees who were allegedly discriminated against in the same manner as the class agent, and evidence of specific adverse actions taken. Id.; Belser v. Dep't of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001) (citing Mastren, et al. v. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993)). Conclusory allegations, standing alone, do not show commonality. Garcia, EEOC Appeal No. 07A10107 (citing Mastren, EEOC Request No. 05930253).
Factors to consider in determining commonality include whether the practice at issue affects the whole class or only a few employees, the degree of local autonomy or centralized administration involved, and the uniformity of the membership of the class, in terms of the likelihood that the members' treatment will involve common questions of fact. Garcia v. Dep't of the Interior, EEOC Appeal No. 07A10107 (May 8, 2003); Anderson v. Dep't of Defense, EEOC Appeal No. 01A41492 (Oct. 18, 2005). The class agent, therefore, must specifically identify facts common to the class. See Mastren, et al. v. United States Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993).
We find that the AJ properly found that the proposed class failed to meet the requirements of commonality and typicality. Complainant has failed to identify a specific policy or practice of retaliation that the Agency applies to the proposed class as a whole. Under these particular facts and circumstances, any inference of retaliation from the allegations of the Complainants is too tenuous. The proposed class lacks uniformity in terms of its membership and claims. Simply put, the Complainants fail to show that common questions of fact exist among the class members. The Complainants are in various locations around the globe, in various positions, have different supervisors, have alleged a variety of claims, and have claimed a number of different bases in their initial individual complaints.
The Commission has arrived at this conclusion before in deciding certification questions similar to this one. See Neufeld, et al. v. U.S. Postal Service, EEOC Appeal No. 01A32782 (April 1, 2004) (class based on sex and reprisal not certified due to failure to establish commonality as potential class members were in different job series and different pay grades, worked for different supervisors, and 15 types of retaliation were alleged based on six different protected activities that class members engaged in); Williams v. Dep't of Agriculture, EEOC Appeal No. 01A30562 (Sept. 23, 2004) (class based on race and reprisal not certified due to failure to establish commonality and typicality as potential class members were in different job series at different pay grades, a wide range of discriminatory practices was alleged to have been committed by a "multitude" of agency officials); Browder v. U.S. Postal Service, EEOC Appeal No. 0120061423 (March 12, 2009) (class based on race and reprisal not certified due to failure to establish commonality and typicality as a wide range of discriminatory practices was alleged, not one of which affected all potential class members).3
While we do not advance any opinion on the merits of each Complainant's individual EEO complaint, we find that the claims do not satisfy the regulatory requirements for certification as a class.
Our regulations provide that, when the Agency dismisses a class complaint, it shall inform the Complainant either: (a) that the complaint is accepted and filed as an individual complaint of discrimination; or (b) that the individual complaint is also dismissed in accordance with 29 C.F.R. � 1614.107(a). 29 C.F.R. � 1614.204(d)(7). The Agency must also process any other individual complaints held in abeyance and/or associated with the class complaint at the time that the class complaint was filed. We note that the Agency's final order advised Complainants that their individual complaints would be processed.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for each Complainant, implementing the AJ's decision not to certify the class complaint, and notifying each Complainant that the processing of his or her individual complaint would resume from the point it was held in abeyance while class certification was pending. We REMAND the complaints to the Agency for further processing, as specified in the Order below.
ORDER
Within thirty (30) days of the date this decision becomes final, to the extent it has not already done so, the Agency shall notify each individual Complainant that it will resume processing of that Complainant's individual EEO complaint, if any, pursuant to the regulations found at 29 C.F.R. Part 1614, from the point that it was held in abeyance.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
March 30, 2015
Date
Appendix A
Complainant
EEOC Appeal No. EEOC Hearing No. Agency No. 1
0120141231 480-2012-00682X PE-FY11-012 2
0120141151 PE-FY12-107 3
0120141226 480-2012-00761X PE-FY12-009 4
0120141227 480-2013-00371X EU-FY13-037 5
0120141228 480-2013-00385X DD-FY13-124 6
0120141229 No formal complaint filed 7
0120141230 MSPB appeal filed (jurisdiction denied), no formal EEO complaint filed 8
0120141232 480-2013-00387X DD-FY12-079 9
0120141233 480-2013-00291X DD-FY13-007 10
0120141239 480-2013-00126X PE-FY12-016,
PE-FY10-062 11
0102141240 480-2013-00369X EU-FY13-008 12
0120141241 480-2013-00370X EU-FY12-070 13
0120141242 PE-FY12-044 14
0120142556 480-2013-00368X EU-FY12-027
1 See Appendix A for a list of the Complainants and their associated EEOC Appeal Numbers, EEOC Hearing Numbers, and Agency Complaint Numbers. We have exercised our discretion under 29 C.F.R. � 1614.606 to consolidate the appeals for processing, as each is an appeal of the same decision not to certify the proposed class. A copy of this decision will be mailed to each of the named Complainants.
2 Complainant's counsel apparently uses the terms "African-American" and "black" interchangeably to refer to race.
3 Because we find that the proposed class fails to meet the prerequisites of commonality and typicality, we need not address the prerequisites of numerosity and adequacy of representation.
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2
0120141231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
2
0120141231, et al.