Alicia R. Neufeld, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency (Southwest Area)  (posted 9/8/04)

Appeal No. 01A32782

Agency No. CC-780-0367-00

Hearing No. 360-A0-8533X

April 1, 2004

 Alicia R. Neufeld (complainant) an Address Management Specialist, employed at the agency's  San Antonio, Texas facility.  Neufeld filed a formal EEO class  complaint with the agency on August 31, 2000, alleging discrimination  based on retaliation.  Specifically, Neufeld described the putative class as consisting of women from all levels of management and various crafts who have suffered retaliation for protected activity, as well  as men who testified on behalf of the women or otherwise supported them  in their complaints of discrimination and sexual harassment.

 With regard to commonality, the EEOC Administrative Judge determined that Neufeld  failed  to show that common questions existed among purported class members.  The EEOC Administrative Judge noted that potential class members occupy different jobs across the country, suffered different injuries, and were retaliated against  by different people.  The EEOC Administrative Judge stated that the evidence provided by  the class agent is insufficient to show that the purported class  was discriminated against in the same manner as the class agent.  The EEOC Administrative Judge stated that there is insufficient evidence to show that the  class agent's claim is typical of the claim of any other prospective  class member.  The EEOC Administrative Judge found that the claims at issue involve specific and unique individual claims involving matters of local autonomy as  opposed to matters of centralized administration or policy.

 In her decision, the EEOC Administrative Judge determined that the class agent satisfied the  numerosity and adequacy of representation requirements.  With regard to  numerosity, the EEOC Administrative Judge noted that Neufeld provided 34 written  statements by potential class members across the country.  The EEOC Administrative Judge noted  that each statement identifies other potential class members.  Also, the  AJ noted that complainant identified 27 potential class members in addition to those submitting statements. 

 On March 5, 2003, the agency issued a Notice of Final Action fully  implementing the EEOC Administrative Judge's decision denying certification. 

 On April 4, 2003, the class agent filed the an appeal.  On appeal,  the class agent alleged that the class consisted of members who objected  to discrimination in the following ways:

(1) filing of EEO complaints;

(2) making oral and written complaints of discrimination based on sex  to all levels of agency management;

(3) testifying about discrimination  based upon sex, including testifying before the EEOC, Merit Systems
 Protection Board, and United States District Courts;

(4) participating  in investigations relating to discrimination based upon sex conducted by   agency management, the Inspector General, Postal Inspection Services,  threat assessment teams, sexual harassment fact-finding teams, and
 others;

(5) participating in peaceful protest marches in opposition to  discrimination based upon sex; and

(6) participating in meetings with  agency management seeking to eliminate discrimination based upon sex. 

The class agent alleges that the retaliation has taken the following  forms:

(1) false and discriminatory allegations of misconduct,  including formal discipline;

(2) denial of promotions;

(3) denial  of opportunities, such as selection for and continuation of details;

(4) removal from assignments;

(5) denial of training;

(6) denial of  information under the Freedom of Information Act;

(7) improper release  of confidential information;

(8) issuance of discriminatory performance  evaluations;

(9) excessive scrutiny and delays in processing injury  claims;

(10) hypercritical supervision;

(11) unjustified threats;

(12) public reprimands;

(13) creation of a hostile work environment;

(14) denial of representation during investigatory interviews; and

(15)  failure to hold supervisory and managerial employees responsible for  the above described conduct.


 Further, the class agent identifies the following agency policies  as sources of the retaliation:

(1) failure to take prompt action to  investigate allegations of retaliation;

(2) failure to take prompt  action to investigate allegations of discrimination;

(3) failure to  perform thorough and effective investigations;

(4) continual issuance  of agency decisions finding no discrimination;

(5) failure to intervene  to prevent discrimination and retaliation while charges are pending;

(6) failure to discipline managerial and supervisory employees  found to have engaged in discriminatory practices based upon sex;

(7)  failure to discipline managerial and supervisory employees found to have  retaliated against employees who have engaged in protected activity with  respect to discrimination based upon sex;

(8) failure to provide proper  training to managerial and supervisory employees with respect to their
 obligations not to discriminate based upon sex;

(9) failure to provide  proper training to managerial and supervisory employees with respect  to their obligations not to retaliate against employees who engaged  in protected activity with respect to discrimination based upon sex; and

(10) failure to provide effective supervision of managerial and  supervisory employees with respect to compliance with their obligation  not to discriminate based on sex.

 Neufeld claimed that subjective decision-making underlies the discrimination and asserts that she has identified a pattern of  intentional neglect on the part of the agency.  Neufeld states that the numerous affidavits and documents she has supplied provide  significant anecdotal support of her claims.  Neufeld cites various  governmental reports and documents which she claims demonstrate the  agency's failure to properly administer the EEO system.

The Postal Service's Response

 In response to complainant's appeal, the agency argues that its decision denying certification should be upheld.  The agency claims that  complainant failed to satisfy the commonality and typicality elements  necessary for certification.  The agency notes that complainant fails  to overcome the fact that each claim of reprisal in this case arises  out of individualized personnel actions, situations, and locations,  which fail to prove an agency-wide policy of reprisal.  The agency  states that the affidavits of potential class members show that the  potential members possess unique fact situations and that each member  has engaged in activity that shares no common link with other class  members.  The agency states that the anecdotal evidence, even if true,  shows that the alleged reprisal arose from different supervisors, in  different levels, different crafts, different areas of the country, at  different facilities, and for different reasons.  The agency argues that  complainant has not shown that the agency's policies and practices are  centralized; instead, the agency argues that the class claims suggest  that they are driven by individuals.

 Additionally, the agency argues that complainant has failed to identify  a discriminatory “standard operating procedure” in any location,  much less nationally, that would support a disparate treatment theory  of discrimination.  The agency claims that complainant's documentary  evidence falls short of being statistically significant or otherwise  establishing the existence of a “standard operating procedure.”  The  agency also argues that continuing this complaint as a class complaint  would entail, according to complainant's numbers, hearings for thousands  of potential class members to determine whether each class member was  subjected to reprisal and, if so, to what damages that individual would  be entitled.

 ANALYSIS AND FINDINGS

 The purpose of class 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." 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. 

 The Commission finds that the class has failed to establish commonality.  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.   The putative class agent must establish an evidentiary basis from which  one could reasonably infer the operation of an overriding policy or  practice of discrimination.   Generally, this can be accomplished  through allegations of specific incidents of discrimination, supporting  affidavits containing anecdotal testimony from other employees who  were allegedly discriminated against in the same manner as the class  agent, and evidence of specific adverse actions taken.  Conclusory allegations, standing  alone, do not show commonality.   Factors to consider in  determining commonality include whether the practice at issue affects  the whole class or only a few employees, the degree of 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.  I

 In the present case, the class agent's request for class certification  fails because the class agent  failed to establish commonality.  The  class complaint is merely an "across the board" claim of discrimination  that fails to identify any discriminatory policy or practice which has  the effect of discriminating against the proposed class as a whole.  .  In her “Response to Order Seeking Class Information” and  again on appeal, complainant identifies six types of protected activities  that potential members were engaged in and 15 types of alleged  retaliation taken against class members.  The alleged retaliatory actions  taken against the class members cover a wide range of actions, including  discipline, denial of promotions, delays in processing injury claims,  hypercritical supervision, and claims of a hostile work environment.  The class agent fails to show that common questions of fact exist  among these varying agency actions.  Further, we note that the class  members occupy different job series, have different salary grades,  and work under different supervisors.  Also, the alleged actions were  committed by different levels of management, at different facilities,  throughout the country.  The Commission finds that complainant failed to identify a discriminatory policy or practice that allegedly  discriminated against the class because of reprisal. 

 EEOC found that the class agent's request for class certification failed because it did not meet the requirement of commonality. Accordingly, the agency's decision to deny class complaint certification  was granted.

 
Note: On May 26, 2004 Alicia R. Neufeld, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency appeal was denied.