01A31701_r
07-29-2004
John Moore, Jr., et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John Moore, Jr., et al. v. United States Postal Service
01A31701
July 29, 2004
.
John Moore, Jr., et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31701
Agency No. HZ000996
Hearing No. 260-AO-9187
DECISION
Complainant, as class agent, filed an appeal regarding his class complaint
alleging discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
Complainant was employed as a transitional temporary employee, at the
agency's Madison Wisconsin, Processing and Distribution Center (P&DC)
from July 9, 1994, through January 6, 1995. Complainant filed a formal
EEO class complaint with the agency dated February 12, 1996, on behalf
of a class of Black employees at the Main Post Office in Madison,
Wisconsin. In this complaint, complainant alleged that Black employees
were terminated before they became eligible for career positions.
The complaint also claimed that complainant's supervisor used White
�informants� to find bogus reasons to terminate class members. Further,
complainant alleged that certain policies, such as a �no-talking policy,�
were enforced exclusively against Black employees.<1>
Complainant's complaint was forwarded to the EEOC Milwaukee District
Office for a decision on certification. On March 31, 1998, an EEOC
Administrative Judge (AJ), issued a decision recommending that the
class not be certified. On May 22, 1998, the agency issued a final
decision denying certification.<2> Complainant appealed the agency's
final decision to the Commission.
The Commission issued a decision on complainant's appeal in John Moore
Jr., et al. v. United States Postal Service, EEOC Appeal No. 01984533
(April 17, 2000). The Commission found insufficient evidence in the
record to determine whether the prerequisites for certification were
satisfied. Thus, the Commission remanded the class complaint to the
agency to provide: (1) the number and race of career, casual employees
and temporary employees at the Madison, Wisconsin Main Post Office during
the relevant time period; (2) information concerning the number of Black
temporary employees terminated, and the number converted to permanent
status, and the same information for employees outside the protected
group serving in temporary appointments during the relevant time; and
(3) the reasons Black employees were terminated, and whether their
terminations were affected by a centralized authority within the facility.
Following a supplemental investigation, the class complaint was forwarded
to the EEOC Milwaukee District Office for a decision on certification.
On August 19, 2002, an EEOC AJ issued a decision denying certification.
The AJ found that complainant failed to satisfy the prerequisites of
typicality, commonality, and adequacy of representation. The AJ found
that the issues of the �no-talking policy,� the refusal to let White and
Black employees work together, and the use of spies to monitor the work
of Black employees, are too speculative to form the basis of a class
complaint. With regard to the termination issue, the AJ acknowledged
that potential class members share the same factual circumstances in
that they were terminated prior to a career appointment; however, he
noted that each termination would require an individualized inquiry into
each class member's termination and work performance. Further, the AJ
noted that there is no evidence linking the terminations to a centralized
decision-making policy. The AJ also found that the class members worked
in different areas under different departmental authorities. The AJ
stated that there is no evidence to suggest that the same policy was
applied by numerous supervisors. The AJ noted that the agency would
have defenses unique to each class member. Further, the AJ noted that
complainant has not obtained counsel to assist him in litigating the
class complaint.
The agency issued a Notice of Final Action on December 11, 2002, fully
implementing the AJ's decision denying certification. The agency stated
that it would process complainant's complaint as an individual complaint.
Complainant filed the present appeal from the agency's December 11,
2002 decision. With regard to the termination issue, complainant stated
that many class members were separated or terminated by management at
the Madison P&DC facility because top management had a quota on Black
employees becoming career employees. Complainant also alleged that the
supervisors at the Madison P&DC facility had a �no-talking policy� aimed
at Black employees and not White employees. Complainant contends that
the �no-talking policy� was enforced on all shifts throughout the entire
facility and was easily enforced because a supervisor could supervise in
any department of the facility. Complainant explains the one day he was
reprimanded for talking for approximately thirty-seconds to another Black
employee about the machine they were running. Complainant disputes the
AJ's ruling that the �no-talking policy� was speculative. Additionally,
complainant reiterates his claim that White supervisors used White
employees to �spy and tell� on Black employees. Complainant notes
that in 1993, there were less than twenty career Black employees in all
positions working at the Madison P&DC facility. He states that most of
the career Black employees at the Madison P&DC facility became career
employees at other agency facilities across the country and transferred
to the Madison P&DC facility later in their careers versus having started
working at the Madison P&DC as casuals. Complainant also states that
before he was terminated, �[a]ll of the Black [transitional temporary
employees] at the Madison P&DC facility that I knew of or heard of were
terminated before or after the class agent was terminated.� Additionally,
with regard to numerosity, complainant contends that the proposed class
consists of hundreds of members. Finally, with regard to adequacy of
representation, complainant notes that he has fairly and adequately
represented the class since 1995. Complainant states that when the
class is certified, he will obtain a competent attorney to proceed.
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).
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, we find that complainant has not identified
any agency policy that has the effect of discriminating against the
class as a whole. Complainant has made a generalized allegation of
discrimination that by itself is insufficient to establish commonality.
See Garcia, EEOC Appeal No. 07A10107. Complainant has failed to show
how his termination claim possesses commonality with individuals
in different work areas under different departmental authorities.
We further find that complainant has not provided specific, detailed
information, showing that other individuals were personally affected
by the agency's alleged discriminatory practices and policies. We find
that complainant has failed to show that terminations were affected by
a centralized decision-making authority, or that the same policy was
applied by numerous supervisors. Thus, with regard to his termination
claim, the Commission finds that complainant has not established that
there is commonality among the purported class members.
Additionally, we find that complainant's request for class certification
on the remaining issues fails because the class agent did not show that
common questions exist among the purported class members. We note that
despite his assertion that �[w]ith the blessing of top management,
supervisors at the Madison P&DC facility had a �no-talking policy'
specifically aimed at the Black employees,� complainant has failed to
produce any evidence that a centralized administration within the agency
is involved in implementing the alleged �no-talking policy.� Similarly,
complainant fails to show that there was a specific agency policy with
regard to not letting Black employees work with each other or using White
spies to inform on Blacks. Rather, complainant only provides information
that his particular supervisor employed a �no-talking policy,� refused
to let him work with other Black employees, and employed White spies to
inform on him. We find that other than race, the class agent has failed
to identify facts common to the class as a whole.<3>CONCLUSION
Accordingly, the agency's decision to deny class complaint certification
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
July 29, 2004
__________________
Date
1Complainant also filed an individual
complaint alleging discrimination based on age.
2The agency originally issued an April 17, 1998 decision denying
certification which was rescinded by the May 22, 1998 decision.
3Because we deny class certification due to a lack of commonality,
we do not address whether the class meets the other prerequisites of a
class complaint.