01971933
03-29-2000
Lawrence D. Durnford, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Lawrence D. Durnford v. Department of Justice
01971933
March 29, 2000
Lawrence D. Durnford, )
Complainant, )
) Appeal No. 01971933
v. ) Agency No. B962206
) Hearing No. 100-96-7573X
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the reasons that follow, the Commission VACATES the FAD and REMANDS
the complaint for further processing consistent with the ORDER below.
The record reveals that complainant, an unsuccessful 1994/1995 applicant
for the position of Immigration Judge (Position) with the agency's
Executive Office for Immigration Review (EOIR), filed a formal EEO
complaint with the agency on March 1, 1996. Complainant contends that
EOIR officials failed to select him in favor of less qualified minority,
Jewish, and female applicants, claiming discrimination on the bases of
race (Caucasian), national origin (English), religion (Mormon/Latter
Day Saints), and sex (male). Complainant further claims that he and
"hundreds" of non-minority, non-Jewish, male 1994/1995 applicants for
the Position were discriminated against in the same manner. Complainant
requested that these applicants be certified as a class in order to
pursue the instant claim as a class action complaint.
The agency referred this matter to an EEOC Administrative Judge (AJ)
for the purpose of issuing a recommended decision (RD) to the agency
regarding complainant's request for class certification. The AJ
recommended that the agency conditionally accept the complaint as a
class complaint defined as "non-Hispanic, White, non-Jewish, and male
applicants for employment who were not selected as Immigration Judges."
The agency issued a FAD rejecting the RD, and denied class certification.
Complainant now appeals this determination. Neither complainant nor
the agency have submitted statements regarding this appeal.
It is well established that a complainant seeking to pursue a class
action bears the burden of proof in establishing that the proposed class
meets the "prerequisites of numerosity, commonality, typicality, and
adequacy of representation" as specified in 29 C.F.R. � 1614.204(a).
This regulation, which is an adaptation 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.
Contrary to the FAD, we agree with the AJ that the complainant has
presented enough evidence to conditionally satisfy these prerequisites
sufficient to warrant provisional certification of the class pending
further development of the record. See Flourney v. National Aeronautics
and Space Administration, EEOC Appeal No. 01966586 (March 3, 1998).
1. Numerosity
Pursuant to 29 C.F.R. � 1614.204(a) (2) (i) a class must be so numerous
that a consolidated complaints of the members of the class is impractical.
Although the Commission's requirements for an administrative class
complaint are patterned on the Rule 23 requirements, Commission
decisions in administrative class certification cases are guided
by the fact that the administrative complainant has not had access
to pre-certification discovery in the same manner and to the same
extent as a Rule 23 plaintiff. See Moten et al. v. Federal Energy
Regulatory Commission, EEOC Request No. 05910504 (December 30, 1991).
Moreover, the exact number of class members need not be shown prior to
certification. Id. The correct focus in determining whether a proposed
class is sufficiently numerous for certification purposes is on the
number of persons who possibly could have been affected by the agency's
allegedly discriminatory practices and who, thus, may assert claims. Id.
The AJ retains the authority to redefine a class, subdivide a class, or
recommend dismissal of a class if it becomes apparent that there is no
longer a basis to proceed with the class complaint as initially defined.
See 29 C.F.R. � 1614.204(d); Dumbar v. Social Security Administration,
EEOC Appeal No. 01975435 (July 8, 1998), request to reconsider denied,
EEOC Request No. 05981075 (January 22, 1999).
Responding to the AJ's request for information, complainant submitted
a July 27, 1995, letter from the Chief Immigration Judge notifying
him of his non-selection for the Position in which he states that the
agency received "hundreds of applications from qualified candidates."
He also submits an July 1995 agency newsletter which lists the names of
34 successful applicants for the Position, contending that the majority
of them are "obviously" female, Jewish, and "minority"(non-Caucasian)
persons. In evaluating this evidence, the AJ noted that the agency failed
to respond to his request for information so that the record was devoid
of any evidence or explanation contrary to that provided by complainant.
The AJ then concluded that complainant "is likely" to be able to carry
his burden of proof during post-certification discovery, noting that
complete information is not required at the certification stage because
class agents do not have the benefit of pre-certification discovery,
citing to Hines et al. v. Department of the Air Force, EEOC Request
No. 05940917 (January 29, 1996).
The FAD disagreed with this determination, concluding that a form
rejection letter is not reliable evidence of the actual number of
applicants, and that complainant provided no evidence to show how many
of these applicants had the requisite class characteristics. The FAD
also argued that deducing sex, religious, and non-Caucasian status
from names in a newsletter was nothing more than mere speculation.
The FAD concluded that complainant was only able to identify himself as
a member of the proposed class, so that complainant's request for class
certification must be denied.
We are unpersuaded by the agency's arguments, and find that the AJ's
analysis of this prerequisite is correct. Because the agency failed to
respond to the AJ's request for information, which could have corroborated
the arguments in the FAD regarding the actual number of 1995 applicants
for the Position, as well as the breakdown of the applicant pool into
sub-sets of class characteristics, the complainant was able to carry
his burden of proof with the evidence he submitted. Given the agency's
failure to submit any evidence in its favor, the AJ correctly determined
that complainant would likely be able to obtain the evidence of numerosity
he needed, which is maintained by the agency, during post-certification
discovery. In other words, if the agency had contrary evidence to offer,
it would have done so, and its failure to do so strongly suggests that the
evidence that it does have in its possession supports the complainant's
claim that the numerosity requirement is satisfied. We concur in this
determination, finding that the AJ correctly applied the pertinent laws
and regulations, as set forth above.
2. Commonality and Typicality
The requirements of commonality and typicality require that the class
agent's claim and the claims of the members of the proposed class raise
common questions of fact and law. 29 C.F.R. �1614.204(a)(2)(ii)(iii)
In practice, the commonality and typicality prerequisites tend to merge.
General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 157
n.13 (1982). At the certification stage, the complainant need only
identify specific facts that are common to the class, and not address
the merits of the class claims. However, the class agent must submit
more than mere bare allegations that these prerequisites are satisfied;
and, his individual claim must show some nexus with the claims of the
putative class. Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985);
Falcon, 457 U.S. at 157-58.
The AJ found that complainant satisfied this requirement by defining
the putative class as all unsuccessful 1994 and 1995 applicants for
the Position who were allegedly discriminated against on the bases
of race/color(White), sex (male), religion (non-Jewish), and national
origin (non-Hispanic), and referencing the Chief Immigration Judge's
newsletter statement that he was focused on creating a diversified bench.
The AJ found that this evidence was sufficient for complainant to carry
his burden of proof because the agency failed to provide any evidence
to the contrary. However, the AJ also noted that complainant failed
to submit evidence that the discrimination was based on religion, or
that the diversity policy included religion, but that complainant could
clarify this deficiency during post-certification discovery.
The FAD conceded that complainant had established commonality, but perhaps
not typicality because complainant's application for the Position had
also been rejected in 1988, prior to the announcement of diversity goals,
apparently suggesting that complainant had flawed qualifications which
were responsible for his rejection, and discrimination played no role.
However, the FAD then declared that the record was inadequate to establish
this, noting that commonality and typicality are "arguably" met, and that
typicality can further be developed during post-certification discovery
if the case reaches that stage.
We find that the AJ's determination regarding these two requirements is
consistent with the laws and regulations set forth above, and note that
the FAD actually does concede that the agency's only argument is based
on pure speculation, and that these requirements have been satisfied.
3. Adequacy of Representation
According to 29 C.F.R.� 1614.204(a)(2)(iv), the class must have a
representative who can "fairly and adequately protect the interests of
the class." In the RD, the AJ noted that complainant was an attorney and
that he testified that he had been conferring with an attorney who had
expertise in litigating class action complaints who would "very likely"
represent the class if it were certified. Although complainant did not
submit the curriculum vitae of the proposed representative, or any other
documentary evidence regarding his qualifications or commitment to accept
the case, the AJ found that complainant demonstrated the intent to obtain
adequate representation after certification, which was adequate under
Hines, supra. The AJ concluded that complainant conditionally met his
burden of showing adequate representation, provided that he submits more
detailed information to the agency to demonstrate this once the class
if certified.
The FAD rejected this finding, concluding that complainant submitted no
evidence, merely making statements regarding the adequacy of counsel.
The FAD further stated that the holding in Hines (that prior to
certification the expressed intention to obtain adequate representation
is sufficient for conditional certification) should not be applied absent
documentary evidence, and that at a minimum the Commission should remand
for development of this issue.
We are again unpersuaded by the agency's arguments, and find its challenge
of the AJ's application of the Hines decision to be without merit,
especially because complainant is an attorney himself, with an enhanced
ability to evaluate the adequacy of the representation, and he has been
actively pursuing expert legal representation for the proposed class.
Based on the legal standards set forth by our regulations and in Hines,
supra, we find that the AJ made the correct decision regarding this
fourth prerequisite, and we discern no reason to disturb it.
By way of conclusion, the FAD repeats its finding that the requirements
of numerosity and representation have not been satisfied, but suggests
that the Commission should remand the case for further development of
both issues. Absent this development, the FAD argues that certification
must be denied. We disagree. As noted by the AJ, complainant carried
his burden of proof regarding each of the four requirements, but that the
certification was "conditional" on post-certification discovery verifying
numerosity and documentation verifying adequacy of counsel. In order
words, the AJ has determined that the class should be certified, but that
if complainant after discovery cannot provide evidence of numerosity
(and adequate representation upon formal notice of certification), the
AJ will then use his authority to decertify the class. See Dunbar, supra.
In summary, the Commission finds that the AJ's decision summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Therefore, after a careful review of the record, including
arguments and evidence not specifically discussed in this decision,
the Commission VACATES the FAD and REMANDS the complaint in accordance
with this decision and the ORDER below.
ORDER
The Commission orders the following:
1. The Commission remands this class complaint to the Hearings Unit of
the Commission's Washington D.C. Field Office for assignment.
2. The assigned AJ will notify the agency of the complaint's acceptance
as a class action, and order necessary post-certification discovery on
the issues of numerosity and adequacy of representation. As previously
noted, our regulations not only provide for this discovery but give the
AJ discretion to redefine a class, subdivide it or recommend dismissal
if it is discovered that there is no longer a basis to proceed as a
class complaint. 29 C.F.R. � 1614.204(d). Therefore, on remand, the
AJ must fully and carefully define the class, especially in regard
to religious status, to enable the agency to comply with 64 Fed. Reg
37,644, 37,658 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.204(e)).
(2) Upon receipt of the AJ's notice, the agency will notify all class
members of the acceptance of the class complaint in accordance with
the requirements of � 1614.204(e) and send a copy of the notice to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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 (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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ _________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.