0120050745
02-09-2007
Artimese A. Epps, et al.1 Class Agent and Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Artimese A. Epps, et al.1
Class Agent and Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200507452
Hearing No. 270-A1-9038X
Agency No. 96-0326
DECISION
On October 29, 2004, complainant filed a timely3 appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the agency's
September 10, 2004 final order concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a).
ISSUE PRESENTED
Whether the AJ's decision, which was implemented by the agency's final
order, properly found that the class was not discriminated against based
on race (black) regarding promotions.
BACKGROUND
On December 21, 1995, the class agents filed a class complaint. In Epps
et al. v. Department of Agriculture, EEOC Appeal No. 01984006 (March 20,
2000), the Commission certified the class complaint as:
All current and former black employees of the agency's National Finance
Center (NFC) who have applied for but not received promotions; the class
also may include any current or former NFC employee who did not apply
for promotion because of the perception that they would not be promoted
because of their race, but otherwise would have applied.
The agency's request to reconsider EEOC Appeal No. 01984006 was denied.
Epps et al. v. Department of Agriculture, EEOC Request No. 05A00627
(January 4, 2002). The NFC is located in New Orleans, Louisiana.
The class complaint was remanded to an EEOC Administrative Judge (AJ).
The AJ determined that the class claim covered the period of December
21, 1993 (two years prior to the date on which the class complaint was
filed) through January 4, 2002 (the date of the denial of request for
reconsideration which finalized the certification). The parties did not
object to this. The class alleged discrimination regarding promotions
from grades GS-3 to GS-15 levels in a large variety of positions,
including telecommunications specialist, supervisory visual information
specialist, fiscal assistant, administrative payments technician,
processing assistant, accounting technician, systems accountant,
supervisory systems accountant, supervisory auditor, budget analyst,
computer assistant, computer specialist, computer programmer analyst,
supervisory computer specialist, contact representative, supervisory
contact representative, program analyst, supervisory program analyst,
personnel assistant, personnel officer, paralegal specialist, associate
director, and so forth.
The parties engaged in extensive discovery. The class gathered what it
described as voluminous documentation. As described by class counsel,
this included "enormous" amounts of machine readable data produced
by the agency, excerpts from over 150 boxes of promotion files and
140 EEO claims filed by both black and white employees at the NFC, as
well as depositions of class agents and several management officials.
According to class counsel, there are over 1,200 class members and class
agents were given access to 2,400 boxes of promotion files.
In December 2002, class counsel filed a motion with the AJ to have
the EEOC appoint two expert witnesses on behalf of the class, i.e., an
employment expert to analyze the promotion and hiring practices of the
agency regarding black employees, and a statistician to provide detailed
information pertaining to the racial composition of individuals hired and
promoted. The motion did not identify any experts. In the alternative,
the motion requested that the class be permitted to choose two experts at
the agency's expense. The motion explained that the class was without
appropriate financial resources. The motion argued that statistical
analysis using applicant flow data was very relevant and the most direct
route to proof of discrimination in hiring and promotion cases, and
experts could provide this absolutely critical analysis and testimony.
Prior to the AJ ruling on the matter, class counsel filed a motion in
February 2003 withdrawing the above motion on the grounds that an expert
was retained. This motion did not identify the expert.
On July 9, 2003, agency counsel issued a timely notice to depose the
class expert on July 23, 2003. At that time, agency counsel requested
identifying information on the expert, a curriculum vitae, and the
expert's report. In a July 15, 2003 letter to the AJ copied to class
counsel, the agency noted it did not receive the above information from
the class, wondered whether the class retained an expert, and requested a
status conference. By letter dated July 21, 2003, agency counsel again
requested that the class attorney provide the information previously
requested, or state the class had not retained an expert. In a letter
to the agency dated July 22, 2003, class counsel, referring to the class
expert as "her," declined to have the expert deposed on July 23, 2003.
He did not write that the expert was unavailable. Agency counsel
immediately replied that he did not intend to honor the class counsel's
unilateral cancellation of the deposition. Agency counsel attended the
scheduled deposition on July 23, 2003. Neither the expert nor class
counsel appeared. At a July 23, 2003 telephone status conference, the
AJ ordered that class counsel provide the name, address, and curriculum
vitae of the expert by July 25, 2003, and reiterated this in a July 24,
2003 order. All the above communications were sent by facsimile.
On July 25, 2003, class counsel filed a motion to extend the time to
name a class expert on the grounds that upon review of the expert's
curriculum vitae on July 25, 2003, the class realized the expert was
not qualified. The agency filed a motion to oppose the extension and
to sanction the class from offering expert statistical testimony at
the hearing. It questioned whether the class ever retained an expert,
noting that in a June 4, 2003 telephone status conference, class counsel
referred to its expert by a male name, and soon thereafter referred to
the expert as "her."
In response to the motion, the AJ sanctioned the class by precluding it
from offering expert testimony or expert evidence at the hearing with
respect to class claims. In so doing, the AJ recounted much of the above.
The AJ noted that prior to the July 23, 2003 telephone conference;
the hearing was scheduled for August 18, 2003. The AJ found that it
defied belief that with less than a month before the hearing, class
counsel had not reviewed the qualifications of a class expert, and it
was more difficult to believe one was ever secured. The AJ noted that
the class counsel used a male name and female pronoun for the expert,
respectively, in June and July 2003, and expressed the belief that the
real reason an expert did not appear at the deposition on July 23, 2003
was because one was never secured. Finding all this to be deceptive and
dilatory, and that class counsel did not act responsibly to locate and
retain an expert after the class complaint was certified on January 4,
2002, the AJ sanctioned the class as above.
Thereafter, the agency filed a motion for summary judgment. It argued
that there were no genuine issues of material fact as to whether
the class could establish a class wide claim of race discrimination
regarding promotions at the NFC, and moved for summary judgment on
individual class claims made by class agents on 20 positions filled by
other African-American employees. It argued that the class failed to
make a prima facie case of disparate impact discrimination because it
failed to identify a facially neutral practice to challenge. Rather, it
argued, class agents raised numerous practices, and failed to identify an
overarching policy to challenge. The agency also argued that the class
failed to present any expert statistical evidence of a disparity, and
due to its dilatory and deceptive actions, was precluded from doing so.
It also noted that the class had not produced any expert report analyzing
the relevant NFC promotion and applicant flow data.
In opposition to the agency's motion for summary judgment, class counsel
conceded that the class was not making a disparate impact claim. Rather,
class counsel explained, the class was alleging class wide intentional
disparate treatment discrimination. The opposition did not specifically
challenge the agency's argument that summary judgment was appropriate on
the individual class claims made by class agents on 20 positions filled
by African-American employees.
In his opposition to summary judgment, class counsel argued that
statistical evidence supported a finding of class wide discrimination.
In support thereof, he submitted an affidavit he signed averring various
statistical facts and analyses. For example, class counsel affirmed
that of the 1,219 competitive promotions made since January 1, 1992,4
blacks received 461 or 38.1%, whites received 678 or 55.6%, and three
other ethnic groups received 76 or 6.2%. Class counsel affirmed that
there were 1,626 employees in the NFC, made up of 702 blacks (43.2%), 824
whites, 59 Hispanics, 27 Native Americans, and 14 Asians. Class counsel
affirmed that, given that black employees made up 43.2% of the NFC,
one would expect them to have received 43.2% of the promotions, or 527,
but they received only 38.1%. Citing a formula in Castaneda v. Partida,
430 U.S. 482, 496 n. 17 (1977) for calculating standard deviations,
class counsel affirmed this was statistically significant. Class counsel
conducted analyses for grouped upper level grades. He affirmed that
since black employees are 43.2% of the whole workforce in the NFC,
they should also be 43.2% of the workforce in the upper grades, but
were a statistically significant lower percentage. In arriving at his
conclusions, class counsel affirmed that he used simple mathematical
calculations taught to elementary school students and analyses approved
in Castaneda. Class counsel argued that because of this, no expert was
necessary to demonstrate class wide disparities.
With his opposition to summary judgment, class counsel also submitted
affidavits from seven people who were class agents at the time
summarily affirming that they received discriminatory ratings lower than
"Outstanding" resulting in denial of quality step increases.
Prior to the scheduled date of the hearing, the AJ ordered the parties to
exchange and file their final witness lists, with a synopsis of expected
testimony for each witness. In response, class counsel submitted a
witness list with well over 200 names and no description of expected
testimonies.5 Upon receiving the list, the AJ ordered class counsel to
comply with the order by supplying a synopsis for the expected testimony
of each witness. In response, class counsel resubmitted a witness list
categorizing witnesses in groups, i.e., by applicants not selected under
specified vacancy announcements, by selectees for certain positions,
by selecting officials, by managers with input into selections, and by
employees who could testify about the selection of whites over "more
qualified" black applicants. No synopsis of testimony was given. Despite
another order by the AJ to class counsel to provide a revised witness
list with synopses by a specified date, no revised witness list was
submitted.
The AJ granted the agency's motion for summary judgment. Regarding the
individual class claims made by class agents on 20 positions filled by
other African-American employees, the AJ's decision noted that the class
did not dispute they were filled by persons in their own protected class,
and hence dismissed these claims. The AJ's decision also recounted the
class statement that it was pursuing the theory of disparate treatment,
not disparate impact.
The AJ's decision stated that class counsel would have the Commission
accept his own deviation analysis of NFC data provided in class counsel's
affidavit, which in effect styled him as both the class counsel and class
expert, and this was highly improper and irregular. The AJ's decision
rejected class counsel's argument that expert statistical analysis and
applicant flow data were not required to prove a prima facie case of class
wide disparate treatment discrimination in promotions, and rejected the
use of the Castaneda model in this case. Citing Commission precedent,
the AJ's decision reasoned that applicant data flow analysis was the
most direct route to proof of discrimination in class wide disparate
treatment promotion cases, and noted class counsel argued that expert
testimony was critical in his Motion to Appoint an Expert Witness.
Determining that expert testimony was critical, the AJ found that the
class had no probative means of demonstrating class wide disparate
treatment in promotions of blacks at the NFC.
On appeal, class agent Epps states that the class attorney mislead
the class on his ability to represent it, and was clearly incompetent.
The class agent states the class cannot afford an attorney, and requests
the Commission to appoint one. In response to the appeal, the agency
argues the appeal was untimely filed and is without merit.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate.
In a disparate treatment class action claim, the ultimate issue is whether
an employer regularly and purposefully treats or has treated blacks less
favorably than others and whether this disparate treatment is racially
motivated. The class bears the initial burden of making out a prima facie
case of discrimination. The prima facie showing may in a proper case be
made out by statistics alone; or by a cumulation of evidence, including
statistics, patterns, practices, general policies, or specific instances
of discrimination. Equal Employment Opportunity Commission v. American
National Bank, 652 F.2d 1176, 1188 (4th Cir. 1981); Phillips v. Joint
Legislative Committee, 637 F.2d 1014, 1026 (5th Cir. 1981); Osolinik
v. Secretary of the Interior, EEOC Request No. 05870101 (May 31, 1988);
Because the class alleges a system wide pattern or practice of resistance
to the full enjoyment of Title VII promotion rights, it ultimately has
to prove more than the mere occurrence of isolated or "accidental" or
sporadic discriminatory acts. It has to establish by a preponderance of
the evidence that racial discrimination was the NFC's standard operating
procedure -- the regular rather than the unusual practice. International
Brotherhood of Teamsters v. United States, 432 U.S. 324, 336 (1977).
As an initial matter, we find that the AJ properly sanctioned the class
by prohibiting it from presenting expert testimony or expert evidence
at a hearing for the reasons stated by the AJ. Another factor making
sanctioning the class appropriate was that despite being given repeated
opportunities to do so, and being ordered to do so, the class did not
submit a witness list with a synopsis of what witnesses were expected to
testify. We agree with the AJ's assessment, in any event, that the class
never retained an expert, despite its prior claim to the contrary and
the opportunity to do so. The record reflects that the class engaged in
extensive discovery and obtained large amounts of documentation and data.
However, there is no genuine issue of material fact that it was unable
to present the information in a statistically probative manner without
an expert.
The AJ correctly found that the statistical information presented by the
class counsel was not probative. First, as found by the AJ, class counsel
would have the Commission accept his own deviation analysis of NFC data
provided in his affidavit, in effect styling himself as both the class
counsel and class expert. Moreover, even if we considered this evidence,
it was not otherwise probative. The analysis contained no applicant
flow data or other statistical information about an available workforce
that was qualified for promotions by race. The analysis was generic and
unpersuasive. Applicant flow data is a very relevant statistical model
in class action promotion cases. Herron v. Department of Agriculture,
EEOC Appeal No. 01A04725 (September 27, 2002). Castaneda v. Partida, 430
U.S. 482 (1977), cited by the class counsel, regarded a county failing,
in a statistically significant fashion, to summon Mexican-Americans for
grand jury service in proportion to their county population. In this
case, however, statistics regarding applicants and who was qualified
for promotions is highly relevant.
Given the failure to provide probative statistical or other cumulative
evidence of class-based discrimination regarding promotions, the AJ
properly ruled that the class failed to establish a prima facie case
of disparate treatment class discrimination. As previously stated, the
Commission's regulations allow an AJ to issue a decision without a hearing
when he or she finds that there is no genuine issue of material fact.
Such is the case here.
We also affirm the finding of the AJ dismissing class agents' individual
claims in which 20 position vacancies in question were filled by other
black employees. We do this for the reason stated by the AJ and because
the class did not specifically oppose the agency's request for summary
judgment against the class regarding this matter.
The class argues that its counsel was ineffective. This argument is
raised for the first time on appeal. The class utilized its counsel for
years, and had the opportunity to assess his quality of representation
and switch counsel. Moreover, the Commission does not appoint counsel
to represent parties in the administrative process.
In August 2002, class counsel filed a motion to subsume individual
complaints that were within the scope of the class action complaint.
An exhibit submitted by class counsel showed there were about 90 such
cases, and class counsel wrote that the exhibit was incomplete. The AJ
granted the motion regarding individual complaints filed from December
21, 1993 to January 4, 2002.
EEOC's Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), Chap. 8, � XI.E at page 8-15 (November
9, 1999) provides that within 60 calendar days of the final decision
finding no class discrimination, each individual complaint received
that was subsumed into the class complaint shall be acknowledged by the
agency and processed in accordance with Part 1614. To the extent that
the agency has not already done so, it must comply with this provision.
CONCLUSION
The decision of the AJ, which was implemented by the agency's final
action, finding no class wide discrimination is affirmed.
ORDER
The agency is directed to acknowledge and/or re-acknowledge receipt of
all individual complaints or portions thereof that were received that
were subsumed into the Epps class complaint (meaning held in abeyance).
The acknowledgments and/or re-acknowledgments shall be made to the
individual complainants and be accomplished within 60 calendar days
after this decision becomes final.6 The Epps class complaint covered
the period of December 21, 1993 through January 4, 2004. Thereafter, the
complaints shall be processed in accordance with 29 C.F.R. Part 1614.7
Copies of the agency's letters of acknowledgment and/or re-acknowledgments
to complainants 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.
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:
_____________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
February 9, 2007
__________________
Date
1 The other class agents are Nelree Richards, Linda J. Simmons, Sheila
Soniat-Riley, Karol Sanders, Andria Milton, Lorraine Washington, Patri
Tropez, Sherry Bournes, Vivian Piper, Frederick Fields, Sabrina Blanchard,
and Mercedes Bardell.
2 The Commission's November 3, 2004 letters to the parties acknowledging
the appeal identified it as docket number 01A50745. Due to changes in
our computerized records tracking system, the appeal docket number has
been restyled to 0120050745.
3 The appeal was filed by class agent Artimese A. Epps on October 29,
2004. She received the final agency decision on September 28, 2004.
The time limit to file an appeal is 30 days from receipt of the final
order. 29 C.F.R. � 1614.402(a). However, if a complainant is represented
by an attorney of record, then the 30 day time limit is calculated from
receipt of the final order by the attorney. 29 C.F.R. � 1614.402(b).
In December 2003, the attorney then representing the class notified the
EEOC Administrative Judge (AJ) and two agency attorney representatives
that he had a new mailing address (Maryland Avenue in Washington, D.C.)
While the AJ sent her decision to the new mailing address, the final
agency order was sent by certified mail to the outdated address. As the
record does not show when the attorney received the final order, we deem
the appeal as being timely filed.
4 This improperly covered a period outside the scope of the class, which
covered the period starting on December 21, 1993. The affidavit also
did not indicate the ending date for the data class counsel analyzed.
The period covered by the class was from December 21, 1993 through
January 4, 2002.
5 In argument, the agency averred that all named class agents were given
16 hours of official time to work on the preparation of the class witness
and exhibit lists.
6 If the agency has difficulty meeting this deadline given the amount
of time that has elapsed since the class complaint was certified and
the NFC being located in New Orleans, the site of natural disasters,
it may request extensions from the EEOC Office of Federal Operations
Compliance Officer.
7 This order does not apply to the individual claims by class agents
that regarded 20 position vacancies that were filled by other black
employees which were dismissed by the AJ.
??
??
??
??
2
01200507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
10
0120050745