01a43115
04-21-2005
Sarah B. Overstreet, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Sarah B. Overstreet v. Department of Homeland Security
01A43115
April 21, 2005
.
Sarah B. Overstreet,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A43115
Agency No. 04-0045
Hearing No. 110-2004-00073X
DECISION
Complainant, as class agent, filed an appeal regarding her 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
During the relevant time complainant was employed as a Human Resources
Specialist, GS-201-14, at the agency's Federal Law Enforcement Training
Center (FLETC) located at Glynco, Georgia. Complainant filed a formal
EEO class complaint with the agency dated September 17, 2003, alleging
that the agency's reorganizations at FLETC since July 29, 2002, adversely
affected all Black females who worked at FLETC.<1> In this complaint,
complainant alleged that when �positions . . . have a great possibility
of being filled by [B]lack females, the organization is dissolved or it is
recommended that the positions be downgraded.� Complainant further stated
that �[t]he FLETC reorganizes to promote White females and White males.
FLETC reorganizations during Director [A's] reign from August 2002 through
June 16, 2003 have had a disparate/adverse impact on Black females.�
Complainant's complaint was forwarded to the EEOC Atlanta District
Office for a decision on certification. On February 24, 2004, an EEOC
Administrative Judge (AJ) issued a decision recommending that the class
not be certified. The AJ found that complainant failed to meet any of
the prerequisites necessary for certification under 29 C.F.R. � 1614.204.
With regard to numerosity, the AJ noted that complainant alleged that the
proposed class consisted of thirty-five Black females who worked at FLETC.
The AJ noted that the agency asserted that there were only thirty-four
Black females at FLETC. The AJ found, even if there were thirty-five
class members as alleged by complainant, this number was an insufficient
number at one facility to make consolidation of the individual claims
impractical. The AJ stated that the putative class members worked in
the same facility. Further, the AJ noted that the putative members
hold various job series and titles, and range in grade from GS-04
through GS-14. The AJ stated that complainant failed to show that all
thirty-five persons were adversely affected by the reorganizations in
2002-2003. The AJ reasoned that because the thirty-five persons hold
significantly disparate job titles, duties and grades, it is extremely
unlikely that all will be similarly affected by reorganizations in
disparate areas of the agency's facilities. Further, the AJ noted
that in its �Agency's Correction and Supplementation of Complainant's
Responses to Mandatory Class Interrogatories,� the agency noted that
some of the Black females worked in divisions which were not affected
by any of the cited reorganizations since July 29, 2002. Additionally,
the AJ found that complainant acknowledged in �Complainant's Rebuttal and
Correction to Agency's Correction and Supplementation of Complainant's
Responses to Mandatory Class Interrogatories� that the class of affected
parties does not include all the Black females at FLETC. Thus, the AJ
concluded that the proposed class is smaller than thirty-five and fails
to meet the numerosity requirement.
Additionally, the AJ found that complainant failed to meet the remaining
three prerequisites for class certification. With regard to commonality,
the AJ found that because complainant has not asserted that each member
of the class was affected by a reorganization in 2002-2003, there are
no questions of fact common to the class. Similarly, the AJ found
that complainant established that her claims are typical only of those
proposed class members which may have been affected by a reorganization.
Finally, the AJ noted that complainant does not have an attorney and
found that she cannot fairly and adequately represent the class.
On March 8, 2004, the agency issued a final decision fully implementing
the AJ's Order denying certification of the class.
Complainant appealed the agency's final decision denying certification.
On appeal, complainant asserts that all thirty-five Black females at FLETC
were adversely affected by the agency's discriminatory reorganization
practices. Complainant states that these thirty-five Black females
are not located at the same facility but are scattered across three
facilities located in three different regions of the country: Glynco,
Georgia, Artesia, New Mexico and Cheltenham, Maryland. She states that
her claims are similar to the claims of the class in that they were
all adversely impacted by FLETC's reorganization practices that are
providing disproportionate promotions to White males and White females.
Thus, complainant asserts that she has satisfied numerosity, commonality
and typicality. With regard to adequacy of representation, complainant
states that upon certification of the class complaint, she will secure
representation from a qualified attorney.
The record contains the AJ's MANDATORY CLASS INTERROGATORIES FOR
COMPLAINANT dated November 21, 2003. The AJ requests the precise class
claim being asserted and the precise definition of the class. The AJ
also asks who the affected class members are and requests the number
of class members, including their name, grade, series, race and sex.
The AJ specifies that the class agent should state how the class members
share a common claim and describe how her situation is typical of the
other class members. The AJ states that if the complaint revolves
around any particular reorganization at FLETC, the class agent should
provide the number of non-class member employees who were also affected
by the reorganization. Finally, the AJ asks complainant to identify what
discovery she intends to pursue if the class is approved for processing.
The record contains the complainant's RESPONSES TO MANDATORY CLASS
INTERROGATORIES BY COMPLAINANT dated December 10, 2003. Complainant
specifies that the precise claim being asserted is that the FLETC's
reorganizations practices are having a disparate/adverse impact on the
promotion of Black females as opposed to other groups. She claims that
FLTEC reorganizes to establish higher level positions for White males
and females, preselects them, and then promotes them to higher grades
or higher organizational levels. She states that the class involves
Black females affected by all FLETC reorganizations under Person A's
reign as Director. She names thirty-five affected class members.
Complainant states that she has over fifteen years of experience in
Human Resources Management laws, regulations, policies, procedures and
case law. She states that upon certification of the class, she will
secure representation from a qualified attorney experienced in handling
class action complaints.
In a December 18, 2003 response entitled AGENCY'S CORRECTION AND
SUPPLEMENTATION OF COMPLAINANT'S RESPONSES TO MANDATORY CLASS
INTERROGATORIES, the agency submitted a response to complainant's
statement. The agency noted that although the class agent listed
thirty-five named class members, her list only contains thirty-four names,
including the agent. The agency states that four of the names listed as
members of the class of Black females, have self-identified as �White,
Not of Hispanic Origin� on Office of Personnel Management (OPM) Form 1468,
Race and National Origin Identification. Further, the agency states that
certain divisions were unaffected by any reorganization since July 29,
2002; however, individuals assigned to divisions unaffected by any FLETC
reorganization have been listed as part of the purposed class.
On December 27, 2003, complainant submitted COMPLAINANT'S REBUTTAL AND
CORRECTION TO AGENCY'S CORRECTION AND SUPPLEMENTATION OF COMPLAINANT'S
RESPONSES TO MANDATORY CLASS INTERROGATORIES. In her response, she states
that the agency's EEO Summary report of June 20, 2003, lists thirty-five
Black females at FLETC, which she states is the composition of the class.
Complainant asserts that all Black females at FLETC were affected by
the reorganizations under Person A's presence.
The record contains a copy of the class complaint dated September 17,
2003. In the class complaint, complainant states that on June 16, 2003,
she received official notification of the reorganization of the Workforce
Development Division (WDD) and subsequent realignment under the Office
of Human Capital and the Human Resources Division (HRD). She states
that the reason given for the realignment was that the position did not
support a GS-15 and to separate strategic and operational functions.
Complainant notes, however, that the HRD position was previously held
by a GS-15. She states that when GS-15 positions such as Chief of
WDD and HRD have a great possibility of being filled by Black females,
the organization is dissolved or it is recommended that the positions
be downgraded. As a remedy for the complaint, complainant requests,
among other things, promotions and backpay.
ANALYSIS AND FINDINGS
Upon review, we find that the present class complaint is more properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. The class agent has alleged that the agency's reorganizations
from August 2002, through June 16, 2003, have had a disparate/adverse
impact on Black females. Although complainant names thirty-four purported
class members in addition to herself, she fails to identify how any of
the alleged class members were adversely and specifically affected by
the specified reorganizations. Additionally, we note that in the class
complaint, the class agent alludes to her own individual complaint of
discrimination in which she alleges that she was non-selected in June
2003, for the WDD Division Chief position; however, she failed to identify
any other person who was affected by the same type of agency action.
Thus, we find the present class complaint fails to state a claim.
Once a class complaint is dismissed at the certification stage, the
individual complaint may still proceed if no other basis for dismissal
applies. See 29 C.F.R. � 1614.204(d)(7). However, the record reveals
that the agency is currently processing complainant's individual complaint
regarding the non-selection for the WDD Division Chief position in
June 2003.
CONCLUSION
Accordingly, the agency's decision dismissing complainant's class
complaint 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 21, 2005
__________________
Date
1Complainant also filed an individual complaint
of discrimination on September 17, 2003.