01994220
03-15-2002
Marsha L. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marsha L. Harris v. United States Postal Service
01994220
03-15-02
.
Marsha L. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994220
Agency No. CC-741-0011-97
Hearing No. 310-97-5331X
DECISION
Marsha L. Harris (complainant) filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency decision
(FAD) received March 28, 1999, pertaining to her class complaint alleging
unlawful employment discrimination on the basis of race (African American)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal was postmarked April 26, 1999.
Accordingly, the appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
ISSUE PRESENTED
Whether the class complaint of discrimination should be accepted or
dismissed according to the criteria set forth in 29 C.F.R. � 1614.204.
BACKGROUND
Complainant filed a formal complaint, dated November 20, 1996, on the
above-mentioned basis on behalf of a class consisting African American
(Black) employees at all grade levels at the agency's Processing and
Distribution Center in Tulsa, Oklahoma. Complainant, as the class agent,
alleged that on January 18, 1990, she was clocked out and sent home
for insubordination and failure to follow instructions and subsequently
received a 7-day suspension which was reduced to a letter of warning.
According to the complainant, on June 29, 1996, a white male was clocked
out and sent home for failure to follow instructions and improper conduct
for the same violation, but did not receive a suspension.
The class agent further alleges that Black employees are discriminated
against on an ongoing basis because: (1) management created and
maintained a racially hostile work environment; (2) management
failed to provide a bias-free working atmosphere and to investigate
and correct discriminatory situations; (3) Black employees have been
subjected to racial slurs and other �diminutive� terms indicative of
unlawful race bias and management has failed to take corrective action;
(4) management engaged in discriminatory practices in performance
appraisals using informality as a tool; (5) management engaged in
discriminatory practices by failing to evaluate promptly and failing to
offer improvement opportunities for Blacks; (6) management failed to use
consistent performance appraisal guidelines to ensure unbiased decisions;
(7) management failed to adequately train and educate Black employees; and
(8) management engaged in discriminatory practices in the administration
of the Office of Workers' Compensation Program (OWCP) claims.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on November 20, 1996.
Complainant also named a male letter carrier to be the representative for
the class. Pursuant to 29 C.F.R. � 1614.204(d), the agency forwarded the
complaint to an Administrative Judge (AJ) for a determination of whether
the class complaint should be accepted and certified. In a decision
dated September 1, 1998, the AJ found that the proposed class should
not be certified, because the complaint failed to meet commonality,
typicality, and numerosity requirements and because complainant would
not adequately represent the interests of other class members.
Regarding commonality and typicality, the AJ found that those requirements
were not satisfied because while the class agent alleged that she was
issued a letter of warning on January 18, 1990 for conduct for which a
White employee was merely sent home, there was no specific indication that
other African-American employees were subject to common treatment in this
same manner. Further, the AJ found that there was no assertion that the
agent's claims were typical of the claims of the class. Moreover, the AJ
found that the agent simply listed charges of perceived inequities without
indicating how many employees were affected by a given policy or practice.
With respect to numerosity, the AJ concluded that the agent did not
meet the numerosity requirement. Specifically, the AJ found that, while
the agent listed 30 names of other employees who were said to comprise
the class, that generally classes with 100 or more members meet the
numerosity requirement and courts were reluctant to certify classes with
fewer than 45 members. Finally, the AJ found that the representative,
a letter carrier from the agency's Tulsa office was not an attorney,
presented no evidence that he was experienced in the areas of Labor
and Civil Rights litigation, and further, appeared to be incapable of
adequately protecting the interests of the class. The agency accepted
the AJ's decision as its final action, and indicated that the complaint
would be reviewed as an individual complaint of discrimination. The class
agent filed the instant appeal.
On appeal, the class agent sought to expand upon the substance of the
allegations raised in the formal complaint. Specifically, the class
agent indicated that (1) at least six employees were discriminated against
when management engaged in old style segregation by staffing one machine
majority White and one majority Black, and that the employees at the
�Black� machine were given twice the workload and required to prep and
distribute the mail for the �White� machine, while the White employees
were not required to do the same; (2) that 75% of Black employees were
being hired into temporary non-career positions, whereas 95% of White
employees were being hired into temporary career positions; (3) at least
three employees (including complainant) were subjected to racial slurs
and �diminutive� terms; (4) in at least four instances, Black disabled
veterans were hired into jobs that would aggravate their disabilities,
(5) in at least five instances, management systematically awarded bid
assignments to whites while denying blacks, and targeted jobs held by
minorities for abolishment; and (6) in at least four instances failed to
adhere to the Office of Workers' Compensation guidelines when processing
claims for Black employees.
ANALYSIS AND FINDINGS
The purpose of class action 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) (citing 29 C.F.R. 1614.204(d)(2)). Further, a class complaint
must identify the policy or practice adversely affecting the class
as well as the specific action or matter affecting the class agent.
29 C.F.R. � 1614.204(c)(1).
A class agent must be part of the class she hopes to represent, and must
"possess the same interests and suffer the same injuries" as unnamed class
members. Falcon, 457 U.S. at 156. As a practical matter, the "commonality
and typicality requirements tend to merge." Id. at 157 note 13.
When alleging a claim of "across the board" discrimination, allegations
of specific discriminatory treatment, absent evidence of some common
policy or practice such as biased testing procedures or proof of an
entirely subjective decision-making procedure, do not support class
certification. See id at 159 n. 15. "Factors to consider in determining
commonality are 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." Mastren v. United States Postal
Service, EEOC Request No. 05930253 (October 27, 1993).
Commonality and Typicality
We concur with the AJ's finding that complainant failed to satisfy the
commonality and typicality prongs required for class certification.
While the individual may raise the same issues, such as promotion, as
is raised for the class, the typicality requirement is not satisfied if
the individual's claim is not susceptible to class-wide proof. Here,
complainant offered little more than conclusory statements that she
satisfied the requirements. In her formal complaint complainant alleged
among other things that management created and maintained a racially
hostile work environment, and engaged in discriminatory practices
by failing to promptly evaluate Black employees and offering them no
opportunities for improvement. In her appeal to the Commission the
only area that complainant appeared to have in common with other members
of the purported class is that she is a member of the protected group,
and that she and four other employees were subjected to racial slurs.
In her complaint, complainant alleges that a white male was sent home
for insubordination, whereas she was issued a 7-day letter of warning
in lieu of suspension, however, complainant does not indicate that
any other member of the purported class experienced this type of harm.
We note that general assertions without more will not suffice to justify a
single class covering different types of discrimination such as in hiring,
training, assignments, discipline and promotion. Discrimination in its
broadest sense is the only question alleged that is common to the named
complainant and the class she seeks to create and represent. The mere
fact that an aggrieved complainant is a member of an identifiable class
of persons of the same race is insufficient to establish her standing to
litigate on their behalf all possible claims of discrimination against
the agency. Falcon, 457 U.S. at 159 n. 15.
In Moten v. Federal Energy Regulatory Commission, EEOC Request
No. 05960233 (Apr. 8, 1997), the Commission noted that when common facts
exist, such as centralized promotion policy and practices, a class agent
may represent people from more than one job group. The Commission found
that evidence of a centralized promotion policy, enacted separately by
each facility office, was sufficient (at least provisionally) to find
adequate commonality and typicality between a class of non-supervisory
Black employees in different grades and at different facilities. Here,
complainant does not allege or introduce evidence that there were common
facts or centralized policies. Instead she asserts that the facts involve
policies and practices of the agency that caused different types of harm
to the respective Black employees. For some employees it may have been
failure to hire, for others, the denial of reasonable accommodations;
for others it might have been the denial of training and/or promotion,
and in complainant's claim, it was the unequal application of discipline
and being subjected to racial slurs. Complainant does not show that the
agency's policies and practices are centralized, instead they appear
to be driven by individual supervisors and/or managers.
On the basis of these allegations, the Commission finds that complainant
has not presented sufficient information to satisfy either commonality
or typicality in regard to her allegations including management's failure
to hire Blacks for permanent positions, and its failure to promote them.
Numerosity
EEOC Regulation 29 C.F.R. 1614.204(a) (2) (i) requires that a class be
so numerous that a consolidated complaint of the members of the class
is impractical. This regulation is patterned on Rule 23(a) (1) of the
Federal Rules of Civil Procedure as was its predecessor regulation,
29 C.F.R. 1613.601(b) (1). The Supreme Court has indicated that the
numerosity requirement of Rule 23 imposes no absolute limit for the size
of a class complaint, but rather, requires an examination of the facts
of each case. General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980).
Thus, although courts are reluctant to certify classes with 30 or fewer
members, there are no specific numerical cut-off points. See Harris
v. Pan American World Airways, 74 F.R.D. 24, 23 F.R. Serv. 2d 1335,
1349 (N.D. Cal. 1977). In addition to number, other factors such as
the geographical dispersion of the class, the ease with which class
members may be identified, the nature of the action, and the size of
each plaintiff's claim, are relevant to the determination of whether
the numerosity prerequisite of Rule 23 has been met. Zeidman v. J. Ray
McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981).
Although the Commission's requirements for an administrative class
complaint are patterned on the Rule 23 requirements, Commission decisions
in administrative class certification cases should be guided by the fact
that an 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. However, in
the administrative process, as in the court process, 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. Hines et al. v. Department of
the Air Force, EEOC Request No. 05940917 (January 29, 1996).
The AJ found that the numerosity requirement was not met as the class
agent listed thirty names of other employees who were said to comprise
the class. Complainant failed to carry her burden with the evidence
submitted that the class was of such a size as to require certification.
In response to the agency's arguments that courts were reluctant to
certify classes with fewer than 45 members, the class representative
indicated that the purported class of 30 employees satisfied the
numerosity requirements due to the fact that no arbitrary rules regarding
the controlling effect of specific numbers have been established by
case law. Other than the fact that the purported class members belonged
to the same racial grouping, complainant failed to show that the agency
engaged in any specific pattern or practice of discrimination that applied
to all 30 purported class members. Instead, complainant identified groups
of four to six employees that were subjected to disparate treatment in
different areas of employment and indicated that there were potentially
more employees that were unidentified. For example, four employees
were subjected to racial slurs, five or more employees were denied
bid assignments, and six or more employees were not hired for career
position or passed over by White applicants with lower scores. Further,
complainant did not show that consolidation was impractical due to the
size of the class, an inability to identify the members of the class
and their addresses, or the geographic dispersion of the class members.
Further, at the time the AJ rendered her decision denying certification,
the class size had not changed, nor did the representative indicate that
the class would grow. On appeal the class agent included the names of
15 purported new class members. However, we find no evidence to show
that joinder would be impractical since all the employees were at the
same facility and could be easily identified.
Adequacy of Representation
The AJ found that the adequate representation requirement was not met
as the purported class representative, a letter carrier, was not an
attorney and that there was no evidence that he was experienced in
the areas of Labor Law and Civil rights litigation. Further, the AJ
found that the representative, appeared incapable of protecting the
interests of the class. The record indicates that prior to the issuance
of the AJ's decision, the representative was given an opportunity to
demonstrate that he had sufficient experience in class actions and that
he could fairly and adequately represent the interests of the class.
We note that, as a general rule, the Commission is reluctant to allow
a pro se complainant to represent a class. Sonia Byrd v. Department
of Agriculture, EEOC Request No. 05900291 (May 30, 1990). There is
no evidence in the record that the representative demonstrated his
abilities to fairly and adequately represent the interests of the class.
Instead, the representative stated that �whether we have an attorney is
irrelevant since we are still in the administrative process.� In her
notice of appeal the class agent included the name of an attorney, but
there was no information as to this attorney's skill or qualifications
in litigating class action complaints, nor was there any evidence that
the named attorney assisted the agent in addressing the deficiencies in
the instant complaint and subsequent appeal. Additionally, complainant
did not indicate whether the attorney represented her in an individual
capacity, or represented the entire class. Therefore, the Commission
finds that the class representative and the class agent are unable to
provide adequate class representation.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____03-15-02______________
Date