01A24690_r
05-15-2003
Tony Tyson, et. al., Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Tony Tyson v. Department of the Army
01A24690
May 15, 2003
.
Tony Tyson, et. al.,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A24690
Agency No. AIARCLO-107B0150
Hearing No. 120-A2-1090X
DECISION
Complainant, the class agent, timely filed the instant appeal from an
agency final order dated July 8, 2002, dismissing the captioned class
complaint brought pursuant to Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 2000e et seq. The Commission accepts the appeal.
See 29 C.F.R. � 1614.405.
On August 14, 2001, complainant filed a class complaint, claiming
that the agency discriminated against eligible black employees and
applicants for employment, concerning promotions and appointments to
positions at the GS-14 level and above at HQ TRADOC and Fort Monroe,
VA. Specifically, complainant claimed that although blacks comprise
approximately one-quarter of the workforce, only two black employees
encumber positions at this level. Complainant claimed that the agency
�positioned, prepared, and promoted/appointed� white employees in such a
manner as to result in the disparate treatment of blacks. As evidence,
complainant identified two recent promotions to a GS-14 and GS-15 position
respectively, both awarded to white employees.
The agency forwarded the complaint to the Commission's Baltimore District
Office for a determination regarding class certification. After engaging
in discovery, on June 7, 2002, the AJ issued a decision recommending that
the class complaint be rejected for failure to satisfy the requirements
for class certification. The AJ determined that the complaint allegations
were too vague to be a class allegation, and that complainant failed to
satisfy the criteria of numerosity, commonality, typicality, and adequacy
of representation as set forth at 29 C.F.R. � 1614.204.
Regarding commonality and typicality, the AJ determined that complainant
defined the class as: �all blacks who are eligible to seek employment
in grades GS-14 and above at HQ TRADOC and Fort Monroe; this includes
blacks who are aspiring employees, current and former employees for the
Department of Defense, the Army, TRADOC and HQ TRADOC and Fort Monroe.�
However, the AJ determined that complainant failed to submit evidence of
his application for such positions, or evidence to show that other black
applicants applied for these positions. Additionally, the AJ found that
complainant failed to present evidence to show he had the same interests
as the class or suffered the same harm, and so failed to demonstrate
that his claim is common to or typical of that of the purported class.
The AJ concluded that complainant failed to satisfy these two elements.
Regarding numerosity, the AJ found that complainant identified no class
members, and presented no estimate whatsoever as to their numbers. The AJ
also found that complainant failed to present evidence to demonstrate
that a consolidated case in this same matter would be impractical.
The AJ concluded that complainant failed to establish numerosity.
Regarding adequacy of representation, the AJ found that complainant failed
to identify a representative for the class. The AJ also determined that
complainant did not have the necessary experience, knowledge or legal
skills to represent the interests of the class. The AJ also found that
complainant failed to demonstrate that the class had sufficient resources
to pursue the class action complaint. The AJ concluded that complainant
failed to establish this element.
Additionally, the AJ determined that the complaint lacked specificity
because complainant failed to sufficiently explain his claim, and that
he only vaguely referred to the policy or practice as the agency's,
�positioning, preparing, and promoting/appointing'� white employees in
such a manner as to result in the disparate treatment of blacks. The AJ
also found that the complaint lacked specificity in that portion alleging
the under-representation of blacks in the GS-14 and above positions,
because he failed to identify blacks at the GS-13 level, or anyone from
the purported class, who would be qualified for such positions, presenting
no relevant data on this point. The AJ determined that because of this
vagueness, the complaint could not be viewed as representing the class
allegations, and that it could not be determined whether complainant
was raising the same matters presented in previous EEO complaints and
law suits filed by complainant against the agency.
In conclusion, the AJ rejected the class complaint for failing to satisfy
the criteria at 29 C.F.R. � 1614.204, and indicated that complainant
could pursue his individual complaint.
In its final order, the agency adopted the AJ's decision. The agency also
noted that it previously dismissed complainant's individual complaint, but
that the Commission reversed this determination and remanded the complaint
to the agency for processing. See Tyson v. Department of the Army, EEOC
Appeal No. 01A04746 (November 16, 2001). The agency also noted that the
individual complaint was scheduled for a hearing on October 24, 2002.<1>
On appeal, complainant argues that the AJ failed to properly consider
all of the statistical data he submitted during the discovery phase,
and only used the agency's data to make a decision. Complainant asks
for a determination as to whether the captioned complaint qualifies as
a class action or should be pursued as an individual complaint.
An individual seeking to maintain a class action is required to meet the
"prerequisites of numerosity, commonality, typicality, and adequacy of
representation" set forth at 29 C.F.R. � 1614.204(a)(2). This section,
which is an adoption 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. See 29 C.F.R. � 1614.204(d)(2).
In addressing a class complaint, it is important to resolve the
requirements of commonality and typicality prior to addressing numerosity
in order to "determine the appropriate parameters and the size of the
membership of the resulting class." See Moten v. Federal Energy Regulatory
Commission, EEOC Request No. 05960233 (April 8, 1997) (citing Harris
v. Pan American World Airways, 74 F.R.D. 25, 45 (N.D. Cal. 1977)).
Commonality and Typicality
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. See General Telephone Company
of the Southwest v. Falcon, 457 U.S. 147 (1982). In application, the
commonality and typicality prerequisites tend to merge and are often
indistinguishable. Id. Commonality requires that there be questions of
fact common to the class. The class agent must, therefore, establish
some evidentiary basis from which one could reasonably infer the operation
of an overriding policy or practice of discrimination. This can be done
through allegations of specific incidents of discrimination, supporting
affidavits containing anecdotal testimony from other employees against
whom an employer allegedly discriminated in the same manner as the class
agents, and evidence of specific adverse actions taken. See Mastren
v. United States Postal Service, EEOC Request No. 05930253 (October
27, 1993).
Mere conclusory allegations, standing alone, do not show commonality. A
class agent must specifically identify facts common to the class.
See Mastren, EEOC Request No. 05930253. Typicality requires that
the claims of the class agent be typical of the claims of the class.
The overriding typicality principle is that the interests of the class
members must be fairly encompassed within the class agent's claim.
See Falcon, 457 U.S. at 160.
In addressing commonality and typicality, the Commission notes that
the AJ determined that complainant could not establish these elements
because he could not show that he applied for a GS-14 or above position,
and failed to identify anyone in the purported class who did so. However,
in this case, review of the record reflects that complainant contends
that the agency pre-selects candidates, or only provides notice of
vacancies to select employees or groups of employees, or arbitrarily
restricts eligibility to certain groups, effectively precluding the
opportunity for otherwise qualified candidates to apply for GS-14 and
above positions. Therefore, whether complainant, or anyone from the
putative class submitted an application is not relevant in determining
commonality or typicality.
Nevertheless, we concur with the AJ's conclusion that complainant failed
to satisfy the commonality and typicality elements because he failed to
submit evidence demonstrating that other similarly situated, qualified,
black employees (or outside applicants) were also denied the opportunity
to apply for these positions. We find that the statistical evidence
submitted by complainant fails to demonstrate that the black employees
shown encumbering GS-13 positions would have in fact been qualified
for promotion/appointment to the GS-14 and above positions filled by
the agency during the pertinent time period. To merely assume that
they are qualified because they encumber the next lower grade (GS-13),
without more, is speculative. Moreover, complainant provides no evidence
to show that like himself, the members of the purported class were also
unaware of the vacancies, or arbitrarily eliminated from eligibility by
restrictions in the vacancy announcements.
Accordingly, we conclude that complainant failed to satisfy the regulatory
criteria to establish commonality and typicality.
Numerosity
Numerosity requires that the putative class be so large as to make
joinder impractical. See 29 C.F.R. � 1614.204(a)(2)(i). No set
number is required, and each case is evaluated on its own circumstances.
See General Telephone Company v. Equal Employment Opportunity Commission,
446 U.S. 318, 330 (1980). Considerations include the number of class
members, the location and dispersion of class members, the ease of
identifying class members and any other factors which would indicate a
substantial hardship in the class members participation in the complaint.
See Martin v. U.S. Postal Service, EEOC Request No. 05920003 (December
19, 1991). The exact number of class members need not be shown prior to
certification, but some showing must be made of the number of individuals
affected by the alleged discriminatory practices who therefore may assert
a claim. See Moten, supra.
Complainant provides no evidence of the number of black employees, or
outside applicants, who were qualified for the vacancies,. Moreover,
not even an approximate estimate of the number of the putative class can
be attempted. We find that joinder of the complaints may be impracticable
given that the class includes potential outside applicants for employment;
however, because the record is devoid of any evidence to suggest a number
for the purported class, we find that numerosity has nonetheless not
been demonstrated.
Accordingly, we conclude that complainant failed to satisfy the regulatory
criteria to establish numerosity.
Adequacy of Representation
Adequacy of representation �is perhaps the most crucial requirement
because the judgment will determine the rights of the absent class
members.� See Bailey, et al. v. Department of Veterans Affairs,
EEOC Request No. 05930156 (July 30, 1993). EEOC Regulation 29
C.F.R. � 1614.204(a)(2)(iv) requires that the agent of the class, or,
if represented, the representative, will fairly and adequately protect
the interests of the class.
In this case, we concur with the AJ's determination that the record
fails to show that complainant has the necessary knowledge and skills
to represent the class, or that he is able to insure adequate funding
to procure adequate representation. Thus, we conclude that complainant
failed to satisfy this requirement.
Conclusion
For the reasons set forth above, we find that the agency properly
dismissed the class complaint for failing to satisfy the regulatory
criteria, and we AFFIRM the agency's final action.
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
May 15, 2003
__________________
Date
1According to Commission records, the Baltimore District Office suspended
the processing of the individual complaint, docketed as Hearing No.
120-A2-1277X, as of December 12, 2002.