Carol A. Clopton v. Environmental Protection Agency

05A50178

March 17, 2005

.



Carol A. Clopton, et al.

Complainant,


v.


Stephen L. Johnson,

Acting Administrator,

Environmental Protection Agency

Agency.


Request No. 05A50178


Appeal No. 01A24278

Agency No. 2000-0096-R7

Hearing No. 280-A0-4324X


 DENIAL


The Environmental Protection Agency (agency) timely requested

reconsideration of the decision in Carol A. Clopton, et

al. v. Environmental Protection Agency, EEOC Appeal No. 01A24278

(September 14, 2004).<1> EEOC Regulations provide that the Commission

may, in its discretion, grant a request to reconsider any previous

Commission decision where the requesting party demonstrates 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. See 29 C.F.R. §

1614.405(b).


On April 18, 2000, complainant initiated EEO Counselor contact. Informal

efforts to resolve her concerns were unsuccessful. Subsequently,

complainant and a co-worker, both GS-13 Grant Specialists in the agency's

Region VII Planning and Management Division, located in Kansas City,

Kansas, jointly filed a complaint claiming discrimination on the basis

of age. Specifically, complainant claimed that the agency offered

certain developmental and career enhancing opportunities to a group of

fifty-two predominantly younger employees hired in Region VII in 1998,

but that it failed to offer these career enhancing opportunities to its

predominantly older senior level Region VII employees (over 40 years

of age).<2> In particular, complainant claimed that the agency failed

to afford senior staff with the opportunity to participate in rotation

assignments to other divisions in Region VII, whereas participation in a

rotation assignment program is an integral part of the training program

for the employees hired in 1998.


Complainant further claimed that the detrimental effect of this practice

is compounded by an unwritten policy that requires a senior level employee

to identify a co-worker or co-workers to take over his or her work when

requesting a rotation assignment. Complainant argued that because of

the nature of work performed by “specialists,” such as herself and the

co-complainant, this is essentially impossible. Complainant claimed

that this same unwritten policy encourages the career enhancement of

the fifty-two newer employees, to include a fast track for promotion;

however, the unwritten policy does not take a similar interest or action

on behalf of its older senior employees. Complainant claimed that as

many as 400 Region VII employees are adversely affected by the agency's

practice, consisting of the unwritten rotation assignment policy and

preferential treatment of the fifty-two newer employees, warranting a

class action complaint.


The agency forwarded the complaint to the EEOC's St. Louis District

Office for a determination regarding class certification. On June 1,

2002, the Administrative Judge (AJ) issued a decision recommending that

the class complaint be dismissed on the grounds that it did not meet the

requirements for class certification. Specifically, the AJ found that

while the complaint satisfied the commonality requirement, it failed

to satisfy the remaining three criteria of numerosity, typicality,

and adequacy of representation, as set forth at 29 C.F.R. § 1614.204.


In its previous decision, the Commission found that the AJ improperly

dismissed the class action complaint for failing to satisfy the requisite

certification criteria and vacated the agency's final order implementing

the AJ's decision.


In its request, the agency asserts that the Commission's previous

decision is improper. The agency states that the previous decision did

not require complainant to prove that her complaint met all of the class

action prerequisites. In addition, the agency states that in analyzing

the disparate impact claim, the previous decision incorrectly assumed

that the New Hires Program was limited to employees under age forty.

Specifically, the agency states that one-quarter of the new hires were

forty or older. The agency further asserts that given these figures,

complainant can not establish a prima facie age-based disparate impact

claim and that the “only possible disparate impact was based on hiring

status, not age.”

The agency also contends that the previous decision did not address the

issue of whether complainant timely initiated EEO Counselor contact.

The agency states that complainant was denied a training opportunity in

1997, but that she did not seek EEO Counseling until April 18, 2000,

which it asserts is beyond the applicable time limit. Therefore, the

agency argues that complainant “could neither establish that her claim

was ‘typical' or similar with the injuries of the putative class members.”


The agency also states that complainant failed to prove that her class

size numbered more than two employees. In addition, the agency states

that the previous decision failed to consider the geographic dispersion

of the class members in its numerosity analysis.


EEO Counselor Contact


Regarding the agency's assertion that complainant's initial EEO

Counselor contact is untimely, we disagree. Complainant claims an

age-based disparate impact claim based on the rotational opportunities

purportedly offered to employees in the New Hires Program. The agency

asserts that complainant should have initiated EEO Counselor contact

within forty-five days of being denied training in 1997; however, we

are unpersuaded by this assertion. Complainant is alleging a recurring

violation based on the on-going rotational opportunities purportedly being

offered to employees who are part of the New Hires Program. In addition,

the date of the alleged discriminatory incident in the EEO Counselor's

Report is listed as “April 2000 (on-going)”.


Commonality and Typicality


The agency asserts that the class complainant failed to demonstrate the

typicality requirement. Specifically, the agency states that complainant

failed to “support her allegation that there was a management policy

that required her and other career employees to find a backfill before

rotational opportunities were approved.” However, as stated in our

previous decision, the agency and the AJ misstated complainant's claim.

Specifically, the Commission stated in its previous decision that

“we find that the practice at issue...is not limited to the agency's

alleged unwritten policy requiring senior specialists to backfill their

positions while serving in a rotation assignment. Instead we determine

that the ‘practice' at issue is the agency's failure to offer its career

(and typically older) Region VII employees the same opportunity to

participate in the six-week rotational assignment program provided as

training to the 52 newly hired, predominately younger, employees, who do

not have to ‘backfill' their positions while on assignment.” In addition,

we note that the record contains a copy of a document entitled “FY 98

Hiring Initiative,” discussing the rotational plan for the new hires.


Moreover, we note that the agency asserts that the Commission's previous

decision did not take into account that one-quarter of the fifty-two

new hires were over forty and therefore complainant cannot establish a

prima facie disparate impact claim based on age; however, we find that

these assertions go to the merits of complainant's complaint and not to

whether complainant has met the requirements for class certification.

The agency further states that complainant has not suffered an injury in

fact and thus “cannot maintain that she has a claim that can be typical

of her class's claims.” However, a review of the record reflects

that complainant claims that she is aggrieved because she and other

predominately older employees, who are not part of the New Hires Program,

have not been offered the same opportunities for rotational assignments,

as the predominantly younger employees in the New Hires Program; thus,

she has stated a cognizable claim.



Numerosity


In its request, the agency states that our previous decision “figured

the class size at 425 employees (i.e., the number of Region VII employees

who are 40 or older)” and that this number was an “extreme guestimate”.

In her decision, the AJ stated “[i]t is undisputed that currently Region

[VII] consists of 566 employees and 425 of those employees are over age

40.” While the agency states in its request that the estimate of 425

employees did not take into account the employees within the class that

were new hires, “which would have further reduced the class size,” we

find that even taking into account the fifty-two new hires, the agency

has not shown that the Commission's estimate of 425 employees in the

class is an “extreme guestimate.”


Finally, we disagree with the agency's assertion that because the

previous decision did not expressly address the geographic dispersion

of class members, the previous decision erred in finding that the

numerosity requirement was satisfied. The Commission finds that

geographic dispersion is only one of several factors to be considered

in determining whether numerosity has been satisfied. In addition, we

note that each case should be evaluated on its own circumstances. See

General Telephone Company v. Equal Employment Opportunity Commission,

466 U.S. 318, 330 (1980). We find that the agency has not shown that the

Commission's prior decision, with respect to the numerosity requirement,

“involved a clearly erroneous interpretation of material fact or law.”

29 C.F.R. § 1614.405(b)(2).



Adequacy of Representation


In its request, the agency asserts that complainant “[a]s of the time

she filed the statement supporting her appeal on August 1, 2002, [she]

had yet to retain an attorney to represent her...[t]he agency has received

no information since then that she has progressed in securing competent

counsel.” As we stated in our prior decision “[t]he Commission has

held that where the other certification requirements have been met,

the AJ may conditionally certify the class for a reasonable period

of time so that the class agent may secure adequate representation.

See Hines v. Department of the Air Force, EEOC Request No. 05940917

(January 29, 1996). In addition, we note that complainant by letter

to the Commission dated November 9, 2004, designated an attorney as the

representative for the instant class complaint.



After reconsidering the previous decision and the entire record,

the Commission finds that the request fails to meet the criteria of

29 C.F.R. § 1614.405(b), and it is the decision of the Commission to

deny the request. The decision in EEOC Appeal No. 01A24278 remains the

Commission's final decision. There is no further right of administrative

appeal on the decision of the Commission on this request.




ORDER (E0900)


The agency is ORDERED to take the following action:


1. Within thirty (30) calendar days of the date this decision becomes

final, the agency is ORDERED to transfer this case to the St. Louis

District Office, and to request an assignment to an AJ. The AJ must

conditionally certify the class complaint, for a reasonable time,

sufficient to allow the class agent to furnish evidence to establish

that she satisfied the adequacy of representation requirement, as set

forth in 29 C.F.R. § 1614.204(a)(2)(iv).


2. Upon expiration of the time period established by the AJ, the AJ must

render a decision on the issue of class certification, either certifying

or dismissing the class complaint, for failing to satisfying the adequacy

of representation requirement.


3. The agency shall hold the individual complaint in abeyance pending

the outcome of the class action complaint, and timely send complainant

written notice regarding this action.


Copies of all pertinent documentation verifying compliance with the

above actions must be sent to the Compliance Officer as referenced below.


IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)


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 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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. § 1614.409.



                        COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)


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:



______________________________

Carlton M. Hadden, Director

Office of Federal Operations


March 17, 2005

__________________

Date



CERTIFICATE OF MAILING


For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:



__________________

Date



______________________________

Equal Opportunity Assistant1By letter to the Commission dated November

15, 2004, complainant's attorney asserts that the agency's request for

reconsideration is untimely; and that the agency's request should have

been filed by October 19, 2004 in order to be timely. The Commission

notes, however, that while the agency filed its request on October 20,

2004, the agency's counsel stated that the agency did not receive the

prior decision until September 20, 2004. The record contains a copy of

the prior decision with a date-stamp reflecting that it was received

by the agency on September 20, 2004. Based on these circumstances,

we find the agency's October 20, 2004 request for reconsideration to be

timely filed.


2 The record reflects that the number of the newly hired group is

either forty-eight or fifty-two employees. In the previous decision,

the Commission found that the exact number was not significant to our

determination, and used the number of fifty-two employees, as claimed

by complainant.