01a32192_r
07-09-2004
Herman Word, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Herman Word, et al. v. United States Postal Service
01A32192
July 9, 2004
.
Herman Word, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32192
Agency No.4-A-088-0173-99
Hearing No. 170-A1-8141X
DECISION
Complainant, the class agent, timely filed the instant appeal with the
Commission from a January 22, 2003 agency final order dismissing the
captioned class complaint, brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The Commission accepts the appeal. See 29
C.F.R. � 1614.405.
On September 25, 2000, complainant, a letter carrier encumbering a
modified position, filed a class complaint, claiming discrimination on
the bases of disability and in reprisal for prior protected activity,
as follows:
The union members of Branch 380 (of the �NALC�<1>) were harassed;
Managers and supervisors permitted discriminatory practices justified
as �freedom of speech;�
Managers and supervisors do not comply with �fair labor practices;�
Qualified injured employees do not receive equal overtime;
Injured workers are considered �not earning their keep;�
Injured workers are called names other than their own;
Some injured workers are afforded work within their limitations and
others are not;
Some injured workers are assigned work outside their limitations and
others are not;
Some injured carriers are forced to take fixed days off while others
are not; and
Some injured workers were assigned work outside their bid office.
After considering arguments and evidence submitted by the parties, the AJ
issued a decision on January 17, 2003. Therein, the AJ determined that
claim (3) must be dismissed for failure to state a claim, finding that the
Commission does not have jurisdiction over matters arising under the Fair
Labor Standards Act. The AJ further determined that complainant's claims
were not well defined, but could be viewed as concerning harassment
(claims (1), (2), (5), and (6)) and assignments/overtime/scheduling
(claims (4), (7), (8), (9), and (10)). The AJ also found that the class
was not well defined by complainant, and determined that it should be
defined as �disabled letter carriers within Branch 380 of the NALC.�
In addressing commonality, the AJ determined that the class must be
limited to disabled workers who fall within the protection of the
Rehabilitation Act (as opposed to �injured workers�), but noted that
the members would not have similar restrictions. Additionally, the AJ
determined that some of this class would be �Rehab� employees in permanent
modified positions under the Office of Workers' Compensation Programs,
while others would be on limited duty and light duty. Therefore,
the AJ concluded that these workers do not share �facts in common.�
Furthermore, the AJ found that assigned duties, overtime, and schedules,
are all related to an employee's restrictions, and must be evaluated on
an individual basis, such that this would not be a common factor shared
by the class. The AJ further determined that these employees worked at
many facilities under many supervisors, and there is no indication that
the class complaint involved actions taken at a centralized location or
by a single official. Therefore, the AJ concluded that as to the claims
of harassment, assignments, overtime, and schedules, the purported class
did not share facts in common, and the commonality requirement was not
satisfied.
As to typicality, the AJ noted that complainant is a modified letter
carrier, and that his job was developed specifically to address
his restrictions. Therefore, the AJ determined that complainant's
assignments, overtime and scheduling concerns would not be typical of
other class members who encumbered limited or light duty positions,
at different facilities, or even other modified letter carriers having
different physical restrictions. Moreover, the AJ determined that even
if complainant's claims could be construed as claiming that he himself
suffered harassment, there is no indication that it is typical of the
harassment purportedly experienced by other class members. The AJ noted
that complainant admitted that he only learned about this harassment
at a union meeting, and there is no evidence to show that complainant
suffered a harm typical to the class. Accordingly, the AJ concluded
that the typicality requirement was not satisfied.
In addressing numerosity, the AJ noted that complainant claimed that
two class members in addition to himself filed prior EEO complaints,
and found that this number was insufficient to satisfy numerosity as
to the reprisal claim. As to the disability claim, the AJ determined
that complainant could only identify �at least ten� individuals, and also
found that there were otherwise an insufficient number of potential class
members to satisfy the numerosity requirement. The AJ also determined
that no factor existed to preclude or render impractical the joinder of
the individual complaints.
Finally, in addressing adequacy of representation, the AJ noted that
complainant was the class agent and class representative, and found
that it was apparent that he could not represent the class in complex
litigation. The AJ noted that a class could be certified with the
condition that a suitable representative be retained, but in this case,
given that complainant failed to satisfy the other three requirements,
she found that it was unnecessary to further address this element.
The AJ dismissed the class complaint, with instructions to the agency
to address the individual complaint, by deeming it filed as of the date
of the final order, and then either accepting it for investigation or
dismissing it, and to advise complainant accordingly.
In its final action, the agency implemented the AJ's dismissal of the
class complaint, and advised complainant that if he chooses to pursue his
individual complaint, he must complete an enclosed PS Form 2526 (Complaint
Form) and mail it to the EEO office within 15 days. The agency also
advised complainant that all applicable time frames from the pre-complaint
processing of the class complaint would be preserved.
The instant appeal followed.
Claim (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a).
Here, we concur with the AJ that in as far as claim 3 raises matters
which fall under the Fair Labor Standards Act, it does not fall within
the purview of the statutes enforced by the Commission, the Commission
lacks jurisdiction to address them in the EEO forum. Accordingly,
we AFFIRM the dismissal of claim (3).
Class Complaint
An individual seeking to maintain a class action is required to meet the
"prerequisites of numerosity, commonality, typicality, and adequacy of
representation" set forth at 29 C.F.R. � 1614.204(a)(2). This section,
which is adapted from of Rule 23(a) of the Federal Rules of Civil
Procedure, provides that the agency may reject a class complaint if any
one of these prerequisites is not met. See 29 C.F.R. � 1614.204(d)(2).
In addressing a class complaint, it is important to resolve the
requirements of commonality and typicality prior to addressing numerosity
in order to "determine the appropriate parameters and the size of the
membership of the resulting class." See Moten v. Federal Energy Regulatory
Commission, EEOC Request No. 05960233 (April 8, 1997) (citing Harris
v. Pan American World Airways, 74 F.R.D. 25, 45 (N.D. Cal. 1977)).
Commonality and Typicality
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. See General Telephone Company
of the Southwest v. Falcon, 457 U.S. 147 (1982). In application, the
commonality and typicality prerequisites tend to merge and are often
indistinguishable. Id. Commonality requires that there be questions of
fact common to the class. The class agent must, therefore, establish
some evidentiary basis from which one could reasonably infer the operation
of an overriding policy or practice of discrimination. This can be done
through allegations of specific incidents of discrimination, supporting
affidavits containing anecdotal testimony from other employees against
whom an employer allegedly discriminated in the same manner as the class
agents, and evidence of specific adverse actions taken. See Mastren
v. United States Postal Service, EEOC Request No. 05930253 (October
27, 1993).
Mere conclusory allegations, standing alone, do not show commonality. A
class agent must specifically identify facts common to the class.
See Mastren, EEOC Request No. 05930253. Typicality requires that
the claims of the class agent be typical of the claims of the class.
The overriding typicality principle is that the interests of the class
members must be fairly encompassed within the class agent's claim.
See Falcon, 457 U.S. at 160.
In the instant case, we find that the complaint may best be viewed as an
across-the-board claim. The complaint concerns co-worker, and possibly
supervisory, harassment, denial of overtime opportunities, fixed days
off schedules, assignments outside of a bid office, and assignment of
duties, both within and outside of limitations. In Falcon, the court
determined that there must be a common policy or practice to maintain an
across-the-board claim. See Falcon, 457 U.S. at 157. Here, we concur
with the AJ that complainant failed to show that a common policy or
practice is responsible for the incidents at issue. Instead, based on
a fair reading of the claims, it appears that complainant contends that
different groups of class members experienced varying combinations of
the identified incidents, which belies a finding of commonality as to
the entire class. Furthermore, we also concur with the AJ's finding
that complainant failed to establish typicality. Specifically, we
find that complainant encumbers a position (modified letter carrier)
dissimilar to at least a portion of the putative class, and he fails to
articulate which of the identified incidents he himself experienced as
an adverse action or harassment, if any.<2>
Numerosity
Numerosity requires that the putative class be so large as to make
joinder impractical. See 29 C.F.R. � 1614.204(a)(2)(i). No set
number is required, and each case is evaluated on its own circumstances.
See General Telephone Company v. Equal Employment Opportunity Commission,
446 U.S. 318, 330 (1980). Considerations include the number of class
members, the location and dispersion of class members, the ease of
identifying class members and any other factors which would indicate a
substantial hardship in the class members participation in the complaint.
See Martin v. U.S. Postal Service, EEOC Request No. 05920003 (December
19, 1991). The exact number of class members need not be shown prior to
certification, but some showing must be made of the number of individuals
affected by the alleged discriminatory practices who therefore may assert
a claim. See Moten, supra.
While we find that the number of �injured workers� in Branch 380 of the
NALC is likely to satisfy the numerosity requirement, and even assuming
that each of these workers are disabled individuals falling under the
protection of the Rehabilitation Act, complainant nonetheless fails to
show that a sufficient number of these employees are aggrieved by the
incidents at issue. We concur with the AJ that complainant identifies
only approximately 10 employees, presumably who are disabled and aggrieved
by at least some of the incidents at issue; however, there is nothing in
the record to suggest that there are significantly more than this number.
In terms of reprisal, we find that even assuming that a sufficient number
of disabled NALC members also engaged in the EEO process to satisfy
numerosity, there is no showing that these individuals were aggrieved
by any of the incidents at issue. Accordingly, we concur with the AJ's
finding that the numerosity requirement has not been satisfied.
Adequacy of Representation
Adequacy of representation �is perhaps the most crucial requirement
because the judgment will determine the rights of the absent class
members.� See Bailey, et al. v. Department of Veterans Affairs,
EEOC Request No. 05930156 (July 30, 1993). EEOC Regulation 29
C.F.R. � 1614.204(a)(2)(iv) requires that the agent of the class, or,
if represented, the representative, will fairly and adequately protect
the interests of the class.
In this case, we concur with the AJ's determination that the record
fails to show that complainant has the necessary knowledge and skills to
represent the class. We also find no evidence to suggest that complainant
could obtain the funds to procure adequate legal representation. Thus,
we conclude that complainant failed to satisfy this requirement.
Therefore, for the reasons set forth above, we find that the AJ and the
agency properly dismissed the class complaint for failing to satisfy
the regulatory criteria, and we AFFIRM the agency's final action.
Individual Complaint
EEOC Regulation 29 C.F.R. � 1614.204(d)(7) provides, in pertinent part,
that the agency's final order dismissing a class complaint shall inform
the agent either that the complaint is being filed on that date as
an individual complaint of discrimination and will be processed under
subpart A
or that the complaint is also dismissed as an individual complaint in
accordance with 29 C.F.R. � 1614.107.
Here, we find that the agency required complainant to re-file
his individual complaint. However, as set forth in the above cited
regulation, and as provided by the AJ, the agency should have informed
complainant that his individual complaint would be filed as of the date of
the final order and processed; or, inform him that it is being dismissed,
whichever is appropriate. Unless it has already done so, the agency
should process complainant's individual complaint under Subpart A of
29 C.F.R. Part 1614.
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
July 9, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1National Association of Letter Carriers
2Although the AJ does not specifically address the reprisal basis in
analyzing commonality and typicality, we find that it does not satisfy
these elements for the same reasons as set forth regarding the disability
basis, in particular the lack of a common policy or practice.