Edward A. Bent, et al., Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120054412 (E.E.O.C. Feb. 23, 2007)

0120054412

02-23-2007

Edward A. Bent, et al., Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Edward A. Bent, et al.,

Complainant,

v.

Condoleezza Rice,

Secretary,

Department of State,

Agency.

Appeal No. 01200544121

Hearing No. 100-2004-00559X

Agency No. DOS-F-026-04

DECISION

On June 15, 2005, complainant, as class agent, filed an appeal regarding

the agency's May 16, 2005 final order dismissing his class complaint.

BACKGROUND

At the time of events giving rise to this complaint, complainant was

an applicant for a Foreign Service Officer position with the agency.

Complainant undertook the Foreign Service Oral Assessment on October

31, 2003, in San Francisco, California. Complainant filed an EEO

class complaint with the agency dated February 17, 2004, claiming that

applicants, forty years of age or older, have been discriminated against

when they were non-selected for Foreign Service Officer positions by the

agency, in violation of the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.

Complainant's complaint was forwarded to the EEOC Washington Field

Office for a decision on certification. The Administrative Judge (AJ)

issued a decision denying certification of the class.2 In his decision,

the AJ found that complainant failed to establish three of the four

prerequisites for class certification: commonality, typicality, and

adequacy of representation. The AJ did not specifically address whether

the class established numerosity.

With regard to commonality, the AJ noted that although complainant

alleged that he was asked inappropriate age related questions during

his oral assessment, he failed to identify even one

additional candidate who was asked the same or similar questions during

their oral assessment. The AJ also noted that although complainant

indicated that he knew other candidates who were subjected to age

discrimination, he did not provide any supporting affidavits containing

anecdotal testimony of other candidates that would tend to suggest

that a class of persons were discriminated against in the same manner.

With respect to his claim of biased testing procedures and recruitment

practices, the AJ found complainant's claim lacked specificity and detail.

The AJ noted that despite his allegation that the written portion of the

oral assessment was often times re-circulated to certain unspecified

candidates, complainant provided no additional information to infer

that the agency actually maintains the alleged practice or that it is an

on-going practice. Additionally, the AJ noted that no information was

provided from which it can be inferred that the practice is utilized

nationally, regionally, or locally at one of the agency's offices.

The AJ also noted that, with respect to complainant's claim that the

agency only recruited candidates at college campuses, no information

was provided from which it could be inferred that the agency actually

maintains the alleged practice. Thus, the AJ found complainant has not

provided sufficient information to demonstrate that there is uniformity

among the proposed class members and that the claims of class members

involve common issues of fact.

With regard to typicality, the AJ found that other than bare conclusory

allegations, complainant failed to identify any of the proposed class

members affected by the alleged discriminatory practices and he has not

provided any affidavits containing anecdotal testimony from which it can

be inferred that there are other applicants that were adversely affected

by the alleged biased testing procedures or recruitment practices. Thus,

the AJ found complainant has not demonstrated that he has suffered an

injury that is typical of the proposed class members.

Further, the AJ found complainant informed the Commission in July 2004

that he was interviewing attorneys who specialized in discrimination

and class action law and that he had experienced severe health problems

over the last two months. The AJ noted that since that time complainant

has not informed the Commission that he has retained an attorney with

the education and experience necessary to adequately represent the

proposed class. The AJ also recognized that complainant has not provided

information demonstrating that he has previously represented others in

a class complaint or that he possesses the requisite legal training or

knowledge to adequately represent the interests of the class. Thus,

the AJ found complainant did not satisfy the adequacy of representation

requirement.

The agency issued a final order dated May 16, 2005, fully implementing

the AJ's decision. On June 15, 2005, complainant filed an appeal from

the agency's final order. Thereafter, complainant submitted a brief in

support of his appeal on July 21, 2005.

The agency submitted its Agency's Brief in Opposition to Class Agent's

Appeal on August 19, 2005. The agency argued that complainant's brief

in support of his appeal was untimely filed. Additionally, the agency

stated that the AJ correctly determined that complainant failed to

establish commonality, typicality, and adequacy of representation.

Further, the agency claimed that complainant also failed to satisfy the

numerosity prerequisite for class certification.

Specifically, the agency noted that complainant failed to articulate

exactly whom the class would be comprised of, and has not shown

that individual complaints or a consolidated complaint of members is

impractical.

On August 30, 2005, complainant submitted a Request to be Represented by

a Former California Attorney, naming Representative X as his designated

representative. Additionally, complainant submitted a September 3,

2005 Reply to Agency's Brief in Opposition to Class Agent's Appeal.

The agency submitted a September 20, 2005 Motion to strike the class

agent's reply. Thereafter, complainant filed a September 30, 2005 reply

to the agency's Motion.

ANALYSIS AND FINDINGS

At the outset, we will address the agency's argument that complainant's

brief was untimely filed.

EEOC Regulation 29 C.F.R. � 1614.403(d) provides that any statement or

brief on behalf of a complainant in support of an appeal must be submitted

to the Office of Federal Operations within 30 days of filing the notice

of appeal. Thus, we find complainant's July 21, 2005 brief, complainant's

September 3, 2005 Reply to Agency's Brief, and complainant's September 30,

2005 Reply to Agency's Motion to Strike were filed beyond the applicable

limitations period and they will not be considered in this appeal.

A class complaint is a written complaint of discrimination filed on

behalf of a class by the agent of the class alleging that: (i) the class

is so numerous that a consolidated complaint of the members of the class

is impractical; (ii) there are questions of fact common to the class;

(iii) the claims of the agent of the class 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). A class complaint may be dismissed

if it does not meet each of these four requirements, or for any of the

procedural grounds for dismissal set forth in 29 C.F.R. � 1614.107.

29 C.F.R. � 1614.204(d)(2).

The Commission finds that complainant failed to establish commonality.

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. Department 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. Department of the Army, EEOC

Appeal No. 01A05565 (December 6, 2001) (citing Mastren v. United

States Postal Service, EEOC Request No. 05930253 (October 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 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, EEOC Appeal

No. 07A10107 (citing Mastren, EEOC Request No. 05930253).

In the present case, the class agent's request for class certification

fails because the class agent did not show that common questions exist

among the purported class members; therefore, the class complaint did

not satisfy the commonality requirement. The class complaint consists

of conclusory statements made by complainant that the oral assessment

was biased. The class complaint fails to identify any discriminatory

policy or practice which has the effect of discriminating against the

class as a whole. With regard to the assertion that the agency provides

the same written portion of the oral assessment test to other unspecified

candidates, we note complainant failed to show that the recirculation

of the written portion of the oral assessment is a practice commonly

used by the agency rather than an isolated occurrence. Finally, with

respect to complainant's argument that it appeared that the agency only

recruited candidates at college campuses, we find complainant provided no

information that the agency maintains the alleged practice. Further,

we note that in response to the AJ's Order to Produce Information,

complainant acknowledged that the agency's recruiting and hiring practices

are flawed and affect both the candidates who were eliminated from

the hiring process as well as candidates given a conditional offer.

Complainant notes that he elected to file the complaint as a class

complaint for all candidates over the age of 40; however, he noted that

in the future he may request permission to amend the complaint to include

all candidates regardless of age. Upon review, we find that other than

age, the class agent has failed to identify facts common to the class

as a whole.

Complainant, as class agent, also fails to meet the typicality requirement

necessary for certification of a class complaint. As a practical matter,

"commonality and typicality tend to merge." General Tel. Co. of the SW,

457 U.S. at 159, n. 13. Typicality requires some nexus between the class

agent's claims, and the claims of other members of the class, such as

similar employment conditions and similar effects from the discrimination.

See Kennedy v. National Aeronautics and Space Administration, EEOC

Appeal No. 01993626 (April 26, 2001) (citations omitted); Contreras

v. Department of the Treasury, EEOC Appeal No. 01961671 (May 11, 1998)

(citation omitted), req. for recons. den., EEOC Request No. 05980856

(October 22, 1999). In the present case we note that complainant stated

that the agency's recruiting policies affect both those who passed and

failed the Oral Assessment. As complainant failed the Oral Assessment,

we find his claim is not typical of the claims of those who passed the

assessment. Thus, as complainant fails to show substantially the same

interest as those in the purported class, we find he has not satisfied

the typicality prerequisite.

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 Vigil,

Jr., et al. v. Department of the Army, EEOC Appeal No. 01A02257 (Dec. 13,

2002); Harris v. United States Postal Service, EEOC Appeal No. 01994220

(March 14, 2002); Mastren v. United States Postal Service, EEOC Request

No. 05930253 (October 27, 1993). The Commission finds that the instant

class complaint fails to meet the numerosity requirement. Complainant

provides a single electronic mail message from an unidentified individual

who complainant states was another candidate in his group when he applied

for a position with the agency. Complainant does not give an approximate

number for the purported class and does not present evidence to establish

a number which constitutes the class. Further, aside from the electronic

mail message from another candidate in his application group, we find

complainant fails to produce evidence of assertions that it is likely

that a large number of people were also impacted. At best, complainant

identified two members of the purported class. Complainant presents

no evidence showing that it would be impractical to consolidate the two

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).

The final requirement is that the class agent or his/her representative

adequately represent the class. To satisfy this criterion, the agent or

representative should have sufficient legal training and experience to

pursue the claim as a class action. This prerequisite requires that the

agent of the class, or, if represented, the representative, will fairly

and adequately protect the interests of the class. It is necessary that

the class agent or the representative demonstrate sufficient ability

to protect the interests of the class so that the claims of the class

members do not fail for reasons other than their merits. In this matter,

the class agent has not demonstrated that he or his representative,

an attorney who complainant describes as having "withdrew from the

[California] State Bar in less than favorable circumstances," could

adequately represent the interests of the class. Neither complainant

nor his representative have indicated that they have any familiarity

with class action litigation. Accordingly, we find complainant failed

to satisfy the adequacy of representation requirement.

CONCLUSION

Accordingly, the agency's final order is AFFIRMED. The agency is reminded

that it must process the individual complaint of discrimination under

subpart A of Part 1614 Regulations or dismiss the individual complaint

pursuant to 29 C.F.R. �1614.107. See 29 C.F.R. �1614.204(d)(7).

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

February 23, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 Although the AJ's decision is not dated, we note that the decision

was faxed to the agency on April 7, 2005.

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01A54412

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, DC 20507