01985492
07-17-2000
Nancy McGuire, et al., Complainant , v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Nancy McGuire v. Social Security Administration
01985492
July 17, 2000
Nancy McGuire, et al., )
Complainant , )
)
)
v. ) Appeal No. 01985492
) Hearing No. 130-96-8120X
) Agency No. 98-0446-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
____________________________________)
DECISION
On June 29, 1998, complainant, the class agent, filed an appeal to this
Commission from the agency's final order, dated May 27, 1998, concerning
her class complaint of unlawful employment discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1>
The record indicates that complainant, on behalf of herself and a group
of agency employees, filed a class complaint dated May 30, 1996, alleging
discrimination based on age (over 40) when she and approximately ninety
(90) Social Insurance Specialists/Claims Authorizer Technical Assistants
(CATAs) were denied their position upgrade from GS-105-11 to GS-105-12.
Complainant identified thirteen (13) named individuals, CATAs, who were
over 40 years of age.
Subsequently, the agency referred the class complaint to an EEOC
Administrative Judge (AJ), and on October 29, 1997, the AJ issued a
decision dismissing the class complaint because it did not meet the
prerequisites of a class complaint under the regulations. On May 27,
1998, the agency issued a final order accepting the AJ's decision.
Volume 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.204(a)(2)) provides that a �class
complaint� is a written complaint of discrimination filed on behalf of
a class by the agent of the class alleging that: (1) the class is so
numerous that a consolidated complaint of the members of the class is
impractical; (2) there are questions of fact common to the class; (3) the
claims of the agent of the class are typical of the claims of the class;
and (4) the agent of the class, or, if represented, the representative,
will fairly and adequately protect the interests of the class.
Numerosity
The numerosity prerequisite requires that the class be sufficiently
numerous that a consolidated complaint by the members of the class
is impractical. No set number of class members is required to meet
the numerosity prerequisite, and each case must be evaluated based on
the particular circumstances involved. While the exact number of class
members need not be shown prior to certification, the focus in determining
whether the class is sufficiently numerous for certification is the
number of persons affected by the agency's allegedly discriminatory
practices and who thus may assert claims. Moten v. Federal Energy
Regulatory Commission, EEOC Request No. 05910504 (December 30, 1991);
see generally, Lilly v. Harris - Teeter Supermarket, 720 F.2d 326, 333,
n.5 (4th Cir. 1983).
In the instant case, complainant, undisputed by the agency, indicated
that the class consisted of approximately 90 CATAs within the agency.
Specifically, complainant indicated that all of the class members were
over 40 years of age and they were allegedly denied their position
upgrade from GS-11 to GS-12. Furthermore, complainant provided the
names of 13 class members. Thus, the Commission finds that the class
is sufficiently numerous; thus, it satisfies the numerosity requirement.
Commonality and Typicality
The commonality and typicality require that the class agent possess
the same interest and suffer the same injury as the members of the
proposed class. General Telephone Company of the Southwest v. Falcon, 457
U.S. 147, 156 (1982); East Texas Motor Freight System, Inc. v. Rodgriguez,
431 U.S. 395, 403 (1979). In application, the commonality and typicality
prerequisites tend to merge, and are often indistinguishable. Falcon,
457 U.S. at 157, n. 13.
Commonality is established when a common thread of discrimination
confronts all members of a class. This requires a showing of some
uniformity among the class members and the fact that the claims of class
members involve common issues of fact. Commonality requires that there
be questions of fact common to the class. Mere conclusionary claims,
standing alone, do not show commonality. �Across-the-board� actions which
involve claims of discrimination in different practices such as hiring,
promotion, termination, training, and awards, will not be certified merely
because the class members share the same race, national origin, or sex.
Falcon, 457 U.S. at 150-152, n.4, 158-159, n.15. A class agent must
specifically identify facts common to the class. 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. See Charles, supra;
Harris, 74 F.R.D. at 39.
Typicality requires that the claims of the class agent be typical of the
claims of the class. 29 C.F.R. � 1614.204(a)(2)(iii); Charles, supra.
Although they need not be identical, the claims must be sufficiently
typical to encompass the general claims of the class members so that it
will be fair to bind the class members by what happens with the agent's
claims. Further, the Supreme Court has repeatedly held that a class
agent must be part of the class and �possess the same interest and suffer
the same injury� as the class members in order to establish commonality
and typicality. Falcon, 457 U.S. at 156; Rodgriguez, 431 U.S. at 403;
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216
(1974). The overriding typicality principle is that the interests of the
class members must be fairly encompassed within the class agent's claim.
Falcon, 457 U.S. at 159, n.15; see also Griffin, supra.
In the instant class complaint, complainant specifically alleged that all
members of the class were allegedly denied their CATA position upgrade
from GS-11 to GS-12. Complainant also indicated that she was allegedly
denied her CATA position upgrade from GS-11 to GS-12. Since the class
complaint specifically identifies the alleged claim which is common
to its members and complainant's claim involves the same matter, the
Commission finds that the class complaint satisfies the commonality and
typicality requirements.
Adequacy of Representation
Adequate representation requires that the class representative �fairly
and adequately protect the interest of the class.� 29 C.F.R. �
1614.204(a)(2)(iv). The determination of whether complainant may
�fairly and adequately protect the interest of the class� involves a
two-fold inquiry in that: (1) whether the class representatives have
common interests with members of the purported class; and (2) whether
the class representatives will vigorously prosecute the interests of the
purported class through qualified counsel. See Paxton v. Union National
Bank, 688 F.2d 561 (8th Cir. 1982).
Complainant indicated that her representative, a non-attorney, had over
10 years of experience as an EEO representative and served over 50 cases,
including class complaints. The agency did not provide any evidence or
argument that refutes complainant's assertions. After a review of the
record, the Commission finds that complainant's representative satisfied
the adequacy of representation requirement. Furthermore, complainant
indicated that when the class complaint proceedings become formal,
she would obtain an attorney to serve as the class representative upon
notification from the AJ.
Accordingly, the agency's final order is REVERSED and the class complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency is ORDERED to process the remanded class complaint in
accordance with 64 Fed. Reg. 37,644, 37,658-9 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.204). The agency, within
thirty (30) calendar days of the date this decision becomes final, shall
acknowledge to all of the class members that it has received the remanded
class complaint. The agency, within thirty (30) calendar days of the date
this decision becomes final, is ORDERED to transmit the class complaint,
the complete case file, and any other relevant information related to
the class complaint to the previously assigned Administrative Judge in
EEOC, Birmingham District Office, for further processing of the class
complaint pursuant to 29 C.F.R. � 1614.204 et seq.
A copy of the agency's letter of acknowledgment to all class members and
a copy of the correspondence that transmits the class complaint to the
AJ must be submitted 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 17, 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
1On 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.