Joe Sedillo, et al., Complainant, v. Ann M. Veneman, Secretary,
Department of Agriculture, Agency
Hearing No. 100-99-7226P Appeal No. 07A20071 Agency No. 990031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
2002 EEOPUB LEXIS 4872
August 7, 2002
ISSUEDBY: [*1]
For the Commission by Carlton M. Hadden, Director, Office of Federal
Operations
OPINION:
DECISION
INTRODUCTION
Concurrent with the issuance
of its February 20, 2002 final order regarding the assigned Equal Employment
Opportunity Commission (Commission) Administrative Judge's (AJ) decision to
certify the above-captioned matter as a class action, the agency filed this
timely appeal of the AJ's decision to the Commission. The appeal is accepted
pursuant to 29 C.F.R. § 1614.405. For
the reasons discussed below, it is the decision of the Commission to MODIFY the
AJ's decision, VACATE the agency's final order, and REMAND the matter to the
agency for continued processing of the class complaint.
BACKGROUND
In the class complaint
underlying the instant appeal, the class agents allege that the agency
discriminated against the class of Hispanic Forest Service employees in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. The
complaint alleges that the class members have been subjected to discrimination
on the basis of their national origin (Hispanic) in selections, promotions,
appraisals, awards, [*2] training programs, and by failing to remedy a
working environment hostile to Hispanic employees. n1 On January 7, 2002, after
reviewing the briefs and other submissions of the parties, including information
presented in discovery ordered by the AJ against the agency, the AJ issued a
decision certifying the class.
n1 These are
the allegations as defined by the AJ in his March 10, 1999 order identifying
the issues presented in the class complaint.
In his decision, the AJ
addressed how the class agent had satisfied the requirements for class
certification, as established at 29 C.F.R. §
1614.204(a)(2). The AJ found that the class agents had satisfied the
typicality requirement as to some but not all of their allegations, as they had
sufficiently shown that they shared the same interests and are alleged to have
suffered the same injury as the other members of the class regarding their
allegations of discriminatory selections, promotions, and the presence of a
hostile work environment. The AJ also found that the class agents, [*3]
who sought to represent a class of all Hispanic employees of the Forest
Service at all grade levels, were primarily higher-graded employees (GS-13
through GS-15 levels), but included one employee graded at the GS-6 level, and
that this distribution was sufficient to satisfy the typicality requirement as
to these allegations. The AJ further found, however, that the class agents had
not satisfied the typicality requirement as to the allegations of
discriminatory appraisals, awards, and training programs, as the class agents
had not raised these claims in their individual complaints of discrimination.
The AJ then narrowed the issue presented by the class complaint to be "whether
the Forest Service, U.S. Department of Agriculture (agency), discriminated
against the class agents and other members of the class on the basis of
national origin (Hispanic) in selections, promotions, and the existence of a
hostile work environment."
The AJ then turned to the
requirement that the class complaint contain questions of fact common to the
class, and found that this requirement had been met as well. The AJ found that
the parties had agreed that there was a nationwide total of over 1,600 Hispanic
[*4]
employees in the Forest Service. The AJ further found that, based upon
employee demographic information provided by the agency for the years 1995
through 2000, there was a statistical under-representation of Hispanic
employees in the Senior Executive Service (SES) and higher GS grade levels
which was significant enough to indicate a common policy or practice regarding
promotions and/or selections of Hispanic employees. The AJ also found that the
claim of the lead class agent sufficiently described a common policy or
practice of hostility to Hispanics in the workplace, and that this claim was
supported by the claims of the other class agents.
The AJ also found that, for
reasons of class size and geographical dispersion, the numerosity requirement
had been satisfied. The AJ found that, in addition to identifying the pool of
over 1,600 potentially-harmed Hispanic Forest Service employees, the lead class
agent averred that seventy-two named Hispanic Forest Service employees had
previously filed formal, or presented informal, complaints of hostile work
environment discrimination based upon their national origin. n2
n2 This
evidence was presented in a table which referred to seventy-two specific
hostile work environment complaints filed by Hispanic employees of the Forest
Service between 1993 and 1999. However, the document only lists fifty-four
different-named complainants, and it appears from the table that several of the
complainants have filed more than one hostile work environment complaint
against the agency during the period covered in the table. Accordingly, we
disagree with the AJ that this evidence established that seventy-two employees
had filed formal, or presented informal, hostile work environment complaints.
[*5]
The AJ also found that the class agents had satisfied the adequacy of
representation requirement. In support of this finding, the AJ noted that there
was no indication in the record that the lead class agent has any interest
antagonistic to those of the class, and that his performance thus far indicated
that he would fairly and adequately protect the interests of the class. The AJ
made similar findings regarding the class representative, but did not address
the adequacy of the three other designated class agents.
In its February 20, 2002
final order, the agency declined to implement the AJ's certification decision.
The agency first noted the filing on October 30, 2001 of a similar class
complaint as a civil action in United States District Court. The agency
provided that the civil action addressed issues of discriminatory hiring,
promotion, and harassment against Hispanic employees of Region 5 of the Forest
Service (which includes the states of California and Hawaii, as well as Guam
and the Trust Territories of the Pacific Islands), and that, therefore, the
certified class action should be dismissed as it pertains to employees of
Region 5 of the Forest Service.
The agency also asserted
[*6] that, as a result of removing
Region 5 employees from the class complaint, the class may not meet the
certification prerequisites of commonality, typicality, and numerosity. The
agency further noted that during the pendency of the AJ's class certification
determination, one of the four class agents requested an administrative hearing
in her individual EEO complaint, and another filed a civil action in United
States District Court on her individual EEO complaint. The agency concluded
that these events negatively affected the commonality and typicality requirements.
Concurrent with the issuance
of the agency's final order, the agency filed with the Commission this appeal
of the AJ's certification decision. On appeal, the agency raises numerous
challenges to the AJ's decision. The class agents and representative similarly
present several arguments in favor of certification of the class complaint. We
address these arguments below.
ANALYSIS AND FINDINGS
Standard of Review
As an initial matter we note
that, as this is an agency appeal from an AJ's class complaint certification
decision entered without a hearing, see 29 C.F.R. § 1614.204(d)(7), we apply a de novo
standard [*7] of review and base our
decision upon a preponderance of the evidence. 29 C.F.R. § 1614.405(a).
Class Certification
An individual seeking to gain
certification of a class action is required to sign and file a class complaint
which identifies the policy or practice adversely affecting the class as well
as the specific action or matter affecting the class agent. 29 C.F.R. § 1614.204(c)(1). The class complaint must
present allegations that the class is so numerous that a consolidated complaint
of the members of the class is impractical; that there are questions of fact
common to the class; that the claims of the agent of the class are typical of
the claims of the class; and that 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)(i)-(iv). The Commission's regulatory requirements for
class certification are patterned after Rule 23 of the Federal Rules of Civil
Procedure, and allow for an AJ to dismiss the complaint in its entirety, or any
portion thereof, should it fail to meet the certification prerequisites
provided in 29 C.F.R. § 1614.204(a)(2).
Furthermore, while the party seeking [*8]
certification bears the burden of proof as to each prerequisite, the
Commission is mindful that class agents have limited access to precertification
discovery during the administrative process, as opposed to the rules applicable
to private sector employees, Mastren v. United States Postal Serv., EEOC
Request No. 05930253 (Oct. 27, 1993), and that it would be unjust to hold the
class agents to the same standard of proof in the administrative process as
would be required of a litigant proceeding under Rule 23 in federal district
court.
As the agency has challenged
the AJ's findings in favor of class certification on each of the four
prerequisites, we will address each prerequisite in turn below.
Class Agents
As an initial matter, we note
that, as recognized by the agency, the composition of the group of class agents
has diminished during the pendency of the AJ's certification decision and this
appeal. The AJ recognized four named class members as class agents for the certified
class complaint. However, on appeal the agency has produced unrebutted evidence
that one class agent filed a civil action on her individual discrimination
claims in United States District Court, depriving [*9] the Commission of jurisdiction over her
complaint, see 29 C.F.R. §
1614.107(a)(3) (requiring agency to dismiss EEO complaint when, prior to
a hearing request, the complaint becomes the basis for a pending action filed
in United States District Court in which the complainant is a party), and that
another class agent requested a hearing before an EEOC AJ and subsequently
received a decision on the merits of her individual discrimination complaint.
Both of these class agents' actions, and the subsequent effects of those
actions, took place prior to the AJ's issuance of his class certification
decision. Accordingly, as it is a requirement for all class agents that they be
members of the class, 29 C.F.R. §
204(a)(3), they are no longer eligible to serve as class agents.
The remaining class agents
argue on appeal that the loss of these class agents is not fatal to
certification of the class, as they have presented the names of five additional
class members who have claims which are "entirely typical" of the
class to serve as additional class agents. However, the remaining class agents
have not provided any detailed information on the nature of these individuals'
complaints, such as [*10] copies of the
EEO complaints filed by these individuals, affidavits describing the
allegations these individuals raised with the agency, or any other evidence
which would provide information as to the nature of the individuals' claims.
The only such information offered is the lead class agent's statement that
these class members each have "active EEO complaints pending against the
USDA Forest Service, having raised one or more issues of non-selection,
non-promotion, and/or hostile work environment in his or her EEO complaint(s)."
We find this proffer insufficient to make the necessary showing that these
individuals are eligible to serve as class agents in this action--namely, that
the named individuals will fairly and adequately protect the interests of the
class. See 29 C.F.R. §
204(a)(2)(iv). Therefore, the two remaining class agents from the AJ's
initial class certification are at this time the only class agents in this
class action.
Commonality and Typicality
In addressing whether a class
complaint warrants certification, it is important to first resolve the
requirements of commonality and typicality in order to "determine the
appropriate parameters and the size of the [*11] membership of the resulting class." Fusilier
v. Department of the Treasury, EEOC Appeal No. 01A14312 (Feb. 22, 2002) (citing
Moten v. Federal Energy Regulatory Comm'n, EEOC Request No. 05960233 (Apr.
8, 1997)). 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. General Tel. Co. of the Southwest v.
Falcon, 457 U.S. 147, 156-57 (1982). Factors the Commission considers in
determining whether commonality is present include whether the practices at
issue affect 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. Harris v. United States Postal Serv.,
EEOC Appeal No. 01994220 (Mar. 14, 2002) (quoting Mastren v. United States
Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993)). Typicality exists
where the class agent demonstrates some "nexus" with the claims of
the class, such as similarity in the conditions of [*12] employment and similarity in the alleged
discrimination affecting the agent and the class. Thompson v. United States
Postal Serv., EEOC Appeal No. 01A03195 (Mar. 22, 2001). Furthermore, we
note that the commonality and typicality requirements might be satisfied if
there was a showing of "significant proof that an employer operated under
a general policy of discrimination" and "the discrimination
manifested itself in hiring and promotion in the same general fashion, such as
through entirely subjective decisionmaking processes." Falcon, 457
U.S. at 159 n.15.
Our review of the record
reveals that the class agents have not met their burden of sufficiently establishing
commonality as to the hostile work environment claim. Of the two remaining
class agents for purposes of this class action, only the lead class agent has
presented a hostile work environment claim. The lead class agent alleges in his
complaint that the agency created a hostile work environment based upon his
race, sex, age, and national origin, but he does not provide any information as
to the nature of the hostile work environment to which he has allegedly been
subjected--he simply claims [*13] that
the agency has discriminated against him by the "creation of a hostile
work environment," without further explanation.
The AJ found that the lead
class agent's affidavit in support of certification sufficiently described a
common policy or practice of hostility in the workplace as to Hispanic
employees. Our review of this affidavit, however, reveals that while the lead
class agent alleges that the "abysmal system of mismanagement of
discrimination complaints" at the agency, as well as an "overall
atmosphere of retaliation/reprisal," has produced a "chilling
effect" on the civil rights of Forest Service employees, he has not
presented these concerns in any of his several EEO complaints which serve as
the basis for his membership in the class and as the basis for the class
complaint. Nor does the record contain any detail or explanation as to how the
identified class members have been subjected to a hostile work environment--the
only information present is the lead class agent's claim that fifty-four
Hispanic Forest Service employees have presented hostile work environment
complaints to the agency between 1993 and 1999, and that another eleven
Hispanic employees attempted to present [*14]
such claims after 1996, but were rejected by the agency. The record lacks
any factual description of the nature of any of these complaints or claims,
beyond the bare assertion that they are claims of a "hostile work environment."
Accordingly, it is impossible
to determine whether or to what extent the complained-of hostile work
environment affects the class in terms of the likelihood that the class
members' treatment involves common questions of fact. Therefore, as to the
class claim of hostile work environment, we conclude that the AJ incorrectly
found that the commonality requirement had been satisfied, and that
certification of the class as to that claim was unsupported by the record. We
note, however, that the lead class agent has stated on appeal that the specific
information provided by the agency regarding each named class member's hostile
work environment claim is available upon request. As information which may be
sufficient to establish commonality as to the hostile work environment claims
of the class agent and the class members is purportedly in the possession of the
lead class agent, it is the decision of the Commission to provisionally certify
the class as to the hostile [*15] work
environment claim, and allow the class agents a reasonable period of time to
present any more detailed information they may possess to the presiding AJ for
a determination as to whether the hostile work environment claim of the lead
class agent is typical of the hostile work environment claims of the class
members and whether there are factual issues common to these claims.
We do agree with the AJ that
commonality has been sufficiently established with regard to the claims of
discriminatory selections and promotions. In his determination that the
commonality requirement had been met as to these claims, the AJ noted that the
parties had agreed that there were a total of over 1,600 Hispanic employees
nationwide, out of 29,500 permanent Forest Service employees. The AJ also noted
that information provided by the agency for the years 1995 through 2000 showed
that Hispanic employees were represented in the following levels: three in the
Senior Executive Service (SES); nine at the GS-15 level; twenty-five at the
GS-14 level, forty-two at the GS-13 level; thirty at the GS-12 level; and
fifty-six at the GS-11 level. The AJ further noted that approximately
one-fourth of Forest Service [*16] employees
with GS-level positions are in these higher grade levels, but only ten percent
of the agency's Hispanic employees occupy such positions. From this evidence,
the AJ found that the statistical underrepresentation of Hispanics in the SES
and higher GS levels was sufficient to indicate a common policy or practice
regarding promotions and selections of Hispanic employees in the Forest
Service.
In addition to this
statistical evidence, the lead class agent asserts in his affidavit that
seventy-five to eighty percent of the fifty-four claimants identified as alleging
hostile work environment clams also alleged they had suffered discriminatory
nonselection and nonpromotion based upon "being Hispanic." The record
also contains evidence of fifteen additional nonselection claims, and
twenty-two additional nonpromotion claims. Despite the agency's contention that
a finding of commonality is precluded because the claims of the class agents
and the class members involve different regions and offices, different
management officials, and different geographic locations, we find that the
class agents' evidentiary showing in support of their contention that there
exists an overarching agency [*17]
discriminatory policy or practice is sufficient to establish questions
of fact common to the class as to the claims of discriminatory selections and
promotions. See Moten v. Federal Energy Regulatory Comm'n, EEOC Request
No. 05910504 (Dec. 30, 1991) (allegation of discrimination manifest through
excessively subjective agencywide promotion and selection policies sufficient
to support finding of commonality).
The agency argues on appeal
that the composition of the group of class members will "necessarily"
include a mixture of supervisory and non-supervisory employees, as well as
bargaining unit and management employees, and therefore creates a class with
members whose interests conflict with each other to a level sufficient to
preclude certification. However, the agency has failed to present any evidence
which would indicate that such a conflict exists in the certified class.
Accordingly, we will not disturb the certified class on these grounds. n3
n3 We note
that, even after a class is certified, the AJ remains free to modify the certification
order or dismiss the class complaint in light of subsequent developments. EEOC
Management Directive 110, chapter 8, p. 5 (Nov. 9, 1999). Therefore, should
evidence come to light in support of the agency's contentions, such evidence
and argument may be presented to the AJ during the processing of the class
action.
[*18]
As for the typicality requirement, the AJ found that the distribution of
grade levels among the class agents was sufficient to protect the interests of
the class, and that the class agents had therefore satisfied typicality as to
all grade levels represented in the class. However, as discussed above, the
composition of the group of class agents has diminished, leaving only two class
agents--one of whom occupies a position at the GS-13 level, and another who
recently retired from a GS-13 level position. The agency contends that, as the
remaining class agents seek to represent a class composed of all Hispanic
Forest Service employees of all grade levels, including Hispanic SES level
employees, the class agents' claims are atypical of the class. The agency
further argues that the existence of "at least three different selection/promotion
procedures for different-graded positions" further militates against a
finding of typicality.
We disagree, however, that
the class agents have failed to make a showing of typicality sufficient to
support certification of the class. A class agent's different grade level does
not necessarily render his or her claims atypical of the class. Wagner v. Taylor,
836 F.2d 578, 591 (D.C. Cir. 1987). [*19]
In applying the typicality requirement to a class claim involving
nonpromotion allegations which swept across several grade levels, the court in Wagner
held that:
The court must consider
whether [the class agent] suffered injury from a specific discriminatory
promotional practice of the employer in the same manner that the members of the
proposed class did, and whether [the class agent] and the class members were
injured in the same fashion by a general policy of employment discrimination.
Wagner, 836 F.2d
at 591.
The record in the instant
appeal indicates that the class agents have raised claims which allege being
subjected to, and injured by, a general, agencywide policy of unlawful
discrimination against Hispanics in the Forest Service's selection and
promotion decisionmaking processes. Furthermore, the class agents have provided
demographic evidence regarding the level of representation of Hispanic
employees in higher level positions to indicate that the harm alleged was not
confined to a single position, grade level, or geographic region of the Forest
Service. Accordingly, we find that the class agents have demonstrated a
"nexus" with the [*20] claims
of the class sufficient to satisfy the typicality requirement.
Numerosity
In addressing the numerosity
requirement, the Commission has recognized that there is no set minimum number
of required class members, and that each case must be evaluated based upon the
particular circumstances involved. Woods, et al. v. Department of Housing
& Urban Dev., EEOC Appeal No. 01961033 (Feb. 13, 1998). The focus in
determining whether a proposed class is sufficiently numerous for certification
purposes is on the number of persons affected by the agency's alleged unlawful
discriminatory practices and who, therefore, may assert claims. Moten v.
Federal Energy Regulatory Comm'n, EEOC Appeal No. 05910504 (Dec. 30, 1991).
We agree with the AJ that the
record contains sufficient evidence to establish that the numerosity
requirement has been satisfied. As discussed previously, the lead class agent's
evidentiary presentation to the AJ included a table displaying the names of
fifty-four Hispanic Forest Service employees who, based upon documentation
provided to the class agents by the agency, allegedly filed formal, or
presented informal, discrimination complaints against the Forest [*21] Service between 1993 and 1999. The lead class
agent indicated that at least seventy-five to eighty percent of these
complaints also alleged being subjected to discrimination in selection and
promotion decisions based upon "being Hispanic." The class agent also
presented a list of Hispanic Forest Service employees who had allegedly
previously presented the agency with discrimination claims based upon their
national origin, but which the agency refused to address. The agency has not
disputed this assertion. These claims included fifteen additional
discrimination in selection claimants, twenty-two additional discrimination in
promotion claimants, and eleven additional hostile work environment claimants.
n4 Furthermore, the parties agreed that there are over 1,600 Hispanic employees
of the Forest Service, all of which the class agents allege are potential
members of the class. We find this evidence sufficient in this case to satisfy
the numerosity requirement for class certification.
n4 The
document contained information from a total of thirty-six individuals, but
several of these individuals' claims had already been accounted for in the
table of hostile work environment claims presented by the lead class agent.
[*22]
The agency contends that the existence of a nearly-identical class
action filed as a civil action in United States District Court on behalf of
Hispanic Region 5 Forest Service employees deprives the purported class of
sufficient numerosity. The agency argues that there are 507 Hispanic Region 5
Forest Service employees, and that the filing of the civil action accordingly reduces
the number of potential class members in the instant class to roughly 1,100. We
are unpersuaded that, even if the agency's claim was proven to be true, the
resultant reduction of the number of potentially-affected class members to a
total of approximately 1,100 would deprive the class of sufficient numerosity.
We note that the agency has made no showing of how this civil action actually,
rather than speculatively, impacts the number of named class members in the
instant class action. Accordingly, we are unpersuaded by the agency's argument.
n5
n5 During
the pendency of this appeal, the parties submitted a joint motion requesting
that the Commission hold its decision in this appeal in abeyance, in order to
allow for a redefinition of the instant class should the Hispanic Region 5
Forest Service employees settle their discrimination claims with the agency.
The Commission declines to stay the issuance of its decision in this matter,
and reminds the parties that they may present to the assigned AJ any new
information impacting the formulation of the class and request that the class
be appropriately redefined, as discussed in footnote 3 above.
[*23]
Adequacy of Representation
The final requirement for
class certification is a showing by the class agent or agents that 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)(iv). The class representative should have no conflicts
with the class and should either have sufficient legal training and experience
to pursue the claim or designate an attorney with the requisite skills and experience.
Kennedy v. National Aeronautics & Space Admin., EEOC Appeal No.
01993626 (Apr. 26, 2001). In the instant matter, the class agents have
presented evidence that they do not possess any interests which conflict with
those of the class, and that the class is to be represented in this action by
an attorney with extensive experience in employment discrimination law.
There has been no showing,
however, that either the class agents or the class representative have any
experience in litigating a class action. The Commission has previously held on
numerous occasions that a lack of experience in class action litigation can be
fatal to meeting the adequacy of representation requirement for class
certification. [*24] See Belser v.
Department of the Army, EEOC Appeal No. 01A05565 (Dec. 6, 2001) (noting
"the complex nature of EEO class litigation," and holding the proffer
of attorneys who lack experience in class litigation or EEO law insufficient to
establish adequacy of representation); Kennedy v. National Aeronautics &
Space Admin., EEOC Appeal No. 01993626 (Apr. 26, 2001) (adequacy of
representation not established when class agents failed to demonstrate that
they had any experience in actually prosecuting class complaints, and stating
that "most important, there has been no showing that [the class agent]
ever identified an attorney with the necessary experience in class
actions"); Woods v. Department of Housing & Urban Dev., EEOC
Appeal No. 01961033 (Feb. 13, 1998) (adequacy of representation not established
when there has been "no showing that [the class agent/representative] has
the necessary skills and experience, nor the time and resources at his disposal,
to conduct class litigation").
The Commission has also
recognized that where a class agent has satisfied the commonality, typicality,
and numerosity requirements for class certification, the class may be
conditionally certified [*25] for a
reasonable period of time, in order to permit the class agent time to obtain
qualified counsel. EEOC Management Directive 110, chapter 8, p.5 (Nov. 9,
1999). As the class agents have either fully or provisionally satisfied these
three certification requirements, we provisionally certify the class to allow a
reasonable time for either (1) the class agents to secure additional
representation qualified to conduct class action litigation, or (2) the class
representative to associate himself with other counsel sufficiently experienced
in class action litigation.
Conclusion
For the foregoing reasons, it
is the decision of the Commission to provisionally certify the class, with the
class complaint defined as follows:
Whether the Forest Service,
United States Department of Agriculture, discriminated against the class agents
and other members of the class on the basis of national origin (Hispanic) in
selections, promotions, and the existence of a hostile work environment.
Accordingly, the AJ's
decision on class certification is MODIFIED, the agency's final order is
VACATED, and the matter is REMANDED to the agency for continued processing of
the provisionally certified class
[*26] complaint, as ordered
below.
ORDER
The agency is ORDERED to
comply with the above decision as follows:
(1) The agency shall process
the remanded class complaint in accordance with 29 C.F.R. § 1614.204(e) et seq. Within fifteen
(15) calendar days of the date this decision becomes final, the agency shall
notify all class members of the acceptance of the class complaint in accordance
with the requirements of 1614.204(e). Within thirty (30) calendar days of the
date this decision becomes final, the agency shall provide the Washington, D.C.
Field Office with a copy of the notice sent to the class members, and shall
request the appointment of an AJ, who shall undertake the continued processing
of the complaint pursuant to 1614.204(f) et seq. The agency shall
provide a copy of the notice of certification and request for appointment of an
AJ to the Compliance Officer, as referenced below.
(2) Within 30 days of the
assignment of an AJ by the Washington, D.C. Field Office, the assigned AJ shall
make any further determinations necessary for full certification of the class
on the issues of whether the class agents have presented sufficient evidence to
satisfy the commonality and [*27]
numerosity requirements contained in 29 C.F.R. § 1614.204(a)(2) as to the class claim of the
existence of a hostile work environment, and on the adequacy of additional
counsel retained by the class agents to represent the class in this action. The
parties shall submit evidence in support of their position to the Washington,
D.C. Field Office within thirty (30) days of the date this decision becomes
final. The parties may not make an interlocutory appeal to the Commission on
the decision of the AJ as to these issues.
LOAD-DATE: August 30,
2002