Section 1614.204 of Title 29 C.F.R. provides for processing class complaints of discrimination. A class is defined as a group of employees, former employees, or applicants who are alleged to have been adversely affected by an agency personnel policy or practice which discriminates against the group on the basis of their common race, color, religion, sex, national origin, age, or disability. A class complaint is a written complaint of discrimination filed on behalf of the class by the agent of the class, alleging that the class is so numerous that a consolidated complaint by 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 and, if represented, the representative, will fairly and adequately protect the interests of the class.
The regulatory requirements for class complaints at § 1614.204 provide a structure different from that for individual complaints. For class complaints, there is a four-stage process. The first stage is the establishment of a class complaint. At this stage, the class agent is required to seek counseling from an agency EEO Counselor. The second stage is a determination from a Commission Administrative Judge, subject to agency final action, as to whether to certify the complaint as a class action. The third stage, assuming that the complaint has been certified as a class action, involves a recommended decision from an Administrative Judge on the merits of the class complaint, subject to final agency action in the form of a final decision. The fourth stage, where there has been a finding of class-based discrimination, is the determination of the claims for relief of the individual class members.
Section 1614.204(b) provides that, as with an individual complainant, an employee who seeks to represent a class of employees must seek counseling and undergo pre-complaint processing in accordance with § 1614.105 and Chapter 2 of this Management Directive, with one exception, discussed below. Section 1614.105 requires that an employee must seek counseling within forty-five (45) days of the discriminatory event. The agency shall extend the 45-day time limit when the individual shows that s/he was not notified of the time limits and was not aware of them, that s/he did not know and reasonably should not have known that the discriminatory practice or personnel action occurred, that despite due diligence s/he was prevented by circumstances beyond his/her control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. See § 1614.105(a)(2). The time period may be waived by the agency and is subject to estoppel and equitable tolling. See § 1614.604(c). If the complaint is not resolved on the thirtieth (30th) day following initial EEO counseling, the EEO Counselor must give the agent written notice that s/he has fifteen (15) days from receipt of the notice to file a formal complaint. § 1614.204(c)(2).
The counseling period may be extended up to an additional sixty (60) days if, prior to the expiration of the 30-day period, the aggrieved person agrees with the agency in writing to postpone the final interview.
The one exception to the mandatory counseling prerequisite allows a complainant to move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in an individual complaint. § 1614.204(b).(1) The Commission intends that "reasonable point in the process" be interpreted to allow a complainant to seek class certification when s/he knows or suspects that the complaint has class implications, i.e., the complaint potentially involves questions of law or fact common to a class and the complainant's claim is typical of that of the class. Undue delay will lead to dismissal of the class complaint. (See Section III.A.4 below.) If a complainant moves for class certification after completing the pre-complaint process contained in § 1614.105, no additional counseling is required. Instead, the agency or the Administrative Judge, as appropriate, must advise the complainant of his/her rights and responsibilities as the class agent.
As with an individual complaint, a class complaint must be filed with the agency that allegedly discriminated against the putative class. § 1614.106. A class complaint must be signed by the class agent (the complainant) or a class representative and must identify the policy or practice adversely affecting the class as well as the specific action or policy affecting the class agent. § 1614.204(c)(1).
Within thirty (30) days of an agency's receipt of a class complaint, including the agency's receipt of the class complaint during its investigation of the aggrieved person's individual complaint, an agency must designate an agency representative and forward the complaint, along with a copy of the EEO Counselor's report and any other relevant information about the complaint, to the Commission. § 1614.204(d)(1). When any complaint is filed, an agency must take care to preserve any and all evidence with potential relevance to the class complaint. This is a continuing obligation that begins as soon as the complaint is filed, even before the class has been certified, and continues throughout the processing of the complaint.
The agency must forward the class complaint to the EEOC district office having jurisdiction of the agency facility where the complaint arose. Appendix J to this Management Directive is a list of the addresses of the EEOC district and field offices and their geographic jurisdictions.
Should the agency's organizational component where the complaint arose not fall within one of the geographical jurisdictions shown, the agency should contact the following office for guidance:
Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
Complaint Adjudication Division
P.O. Box 77960
Telephone: (202) 663-4519
TDD: (202) 663-4593
The Commission will assign an Administrative Judge (or in some limited circumstances involving national security, a complaints examiner from another agency) to issue a decision on certification of the complaint. § 1614.204(d).
A class complaint will be dismissed if:
The Administrative Judge may direct the complainant or agency to submit additional information relevant to the issue of certification. See § 1614.204(d)(1).
An individual complaint that is filed before or after the class complaint is filed and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint. If the class complaint is dismissed at the certification stage, the individual complaint may still proceed, unless the same or another basis for dismissal applies. If the class proceeds to a hearing, the individual claim may be presented by the class representative at the liability stage of the process, or it may be presented at the remedy stage by the complainant. If the class complaint is dismissed at the certification stage, the class members may not proceed unless they have timely filed individual complaints.
The agency shall, within thirty (30) days of receipt of a decision dismissing a class complaint for failure to meet the criteria of a class complaint, issue the acknowledgment of receipt of an individual complaint as required by § 1614.106(d) and process in accordance with subpart A, each individual complaint that was subsumed into the class complaint.
The Administrative Judge shall issue a decision on whether to certify or dismiss a class complaint. When appropriate, the Administrative Judge may decide to certify a class conditionally, for a reasonable period of time, until a complainant finds representation. For example, if the record on a class complaint satisfies the numerosity, typicality, and commonality requirements for class certification, the Administrative Judge may "conditionally" certify the class for a reasonable period of time so that the class agent may secure adequate representation. Administrative Judges should refer complainants to any attorney referral systems that may be operating in EEOC district offices or other attorney referral services for assistance in obtaining adequate legal representation.
Even after a class is certified, the Administrative Judge remains free to modify the certification order or dismiss the class complaint in light of subsequent developments. See General Telephone Co. v. Falcon, 457 U.S. 147, 160 (1982). The Administrative Judge has the authority, in response to a party's motion or on his/her own motion, to redefine a class, subdivide it, or dismiss it if the Administrative Judge determines that there is no longer a basis for the complaint to proceed as a class complaint. Hines v. Department of the Air Force, EEOC Request No. 05940917 (January 29, 1996).
The Administrative Judge shall transmit his/her decision to accept or dismiss a class complaint to the agency and the agent. The agency shall take final action by issuing a final order within forty (40) days of receipt of the Administrative Judge's decision. The final order shall notify the agent whether the agency will implement the decision of the Administrative Judge. If the final order does not fully implement the decision of the Administrative Judge, the agency shall simultaneously appeal the Administrative Judge's decision in accordance with § 1614.403 and append a copy of the appeal to the final order. The Commission has prepared a separate form that agencies may use to file appeals with the Commission. A copy of that form is attached as Appendix O.
If the decision is to accept (certify) the class complaint, Commission regulations require the agency to notify all class members. 29 C.F.R. § 1614.204(e)(1). The agency must use all reasonable means to notify all class members of the acceptance of the complaint within 15 days of receipt of the Administrative Judge's decision or within a reasonable time frame specified by the Administrative Judge. (See Section V, below.)
An Administrative Judge's decision to dismiss the class complaint at the certification stage will inform the agent that the complaint is being filed on that date as an individual complaint and will be processed under subpart A, that the complaint is also dismissed as an individual complaint in accordance with § 1614.107(a), or, in the case of a complaint forwarded to the Administrative Judge during the agency's investigation of the complaint, that the complaint is being returned to the agency and will continue from the point that the agency's investigation ended with the referral of the complaint to the Administrative Judge.
The Administrative Judge's decision whether to accept or dismiss the class complaint is subject to final agency action. The Administrative Judge shall transit his/her decision to the agency, with a copy to the complainant and the complainant's representative, if any. The agency has forty (40) days from receipt of the Administrative Judge's decision to take final action by issuing a final order informing the complainant as to whether the agency will fully implement the decision. If the agency informs the complainant that it does not intend to fully implement the decision, the agency must simultaneously file an appeal with the Commission and append a copy of the appeal to the final order served on the complainant. The agency may use the form appended hereto as Appendix O to file its appeal with the Commission. The complainant will have thirty (30) days from receipt of the final order to file an appeal and the agency shall provide the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix K).
Within fifteen (15) calendar days of the agency's receipt of the Administrative Judge's decision certifying a class complaint or such time frame specified by the Administrative Judge, the agency shall use reasonable means, such as hand delivery, mailing to the last known address, or distribution (such as through inter-office mail or e-mail) to notify all class members of the certification of the class complaint. An agency may file a motion with the Administrative Judge seeking a stay in the distribution of the notice for the purpose of determining whether it will file an appeal of the Administrative Judge's order.
The "reasonable means" used by agencies for notification should be those most likely to provide an opportunity for class members to know about the complaint. Conspicuous posting on bulletin boards to which all potential class members have easy access may constitute adequate notice in some situations.
The notice must contain:
The class members may not "opt out" of the defined class; however, they do not have to participate in the class or file a claim for individual relief. All class members will have the opportunity to object to any proposed settlement and to file claims for individual relief if discrimination is found.
All class members must receive notice of any settlement or decision on the class complaint whether or not they participated in the action. See Section VII of this Chapter.
The Administrative Judge will advise both parties that they will have at least sixty (60) days to develop evidence. § 1614.204(f)(1). They can do this in the same manner as in individual cases, i.e., through interrogatories, depositions, requests for admissions, stipulations, or production of documents. The parties may object to production on the grounds that the information sought is irrelevant, overly burdensome, repetitious, or privileged. The Administrative Judge has the authority to impose sanctions on a party if that party fails to comply without good cause with rulings on requests for information, documents, or admissions. An adverse inference may be appropriate where the information is solely in the control of that party. Similarly, if a party fails to provide an adequate explanation for the failure to respond fully and in a timely manner to a request, the Administrative Judge may impose sanctions. Adverse inferences are appropriate when the information is solely in the control of that party. These sanctions include, but are not limited to, the authority to:
The class agent and his/her non-attorney representative should be permitted reasonable access to and/or use of agency facilities (copiers, telephones, word processors) for preparation of the case as long as there is no undue disruption of agency operations. The class agent and/or non-attorney representative may not use agency resources and facilities in the preparation of the class case without obtaining the prior approval of the designated agency official.
The complaint may be resolved by agreement of the agency and the agent at any time pursuant to the notice and approval procedure contained in § 1614.204(g)(4).
If a resolution is proposed, notice must be given to all class members in the same manner as the notification of certification of the class was given. The notice must include a copy of the proposed resolution, set out the relief, if any, that the agency will grant, and inform the class members that the resolution will bind all members of the class. The notice must also inform class members of the right to submit objections to the settlement. The notice further must inform the parties of the name and address of the Administrative Judge assigned to the complaint.
The agency shall provide the Administrative Judge with a copy of the proposed resolution and the notice sent to the parties.
Hearing procedures in class complaints are the same as those applied to hearings in individual complaints of discrimination and are set out at § 1614.109.
The Administrative Judge assigned to hear the complaint will, upon expiration of the period allowed for preparation of the class case, set a date for a hearing and determine the site of the hearing. Within his/her discretion, the Administrative Judge is authorized to conduct the hearing in the EEOC district office, in an EEOC area or local office, at the agency's organizational component where the complaint arose, or at such other location as s/he may determine appropriate. In determining the hearing site, the Administrative Judge may consider factors such as the location of the parties; the location of EEOC district, area, and local offices; the number and location of witnesses; the location of records; travel distances for the Administrative Judge, the parties, and witnesses; travel costs; the availability of sources of transportation; and other factors as may be appropriate.
Should an agency desire that a hearing be held at a location within the jurisdictional area of another EEOC district office, it must submit a request, in writing, to the EEOC office that determined the class certification issue. In its request, the agency must identify the location of the desired place of hearing and must set out, in detail, its reasons and justification for the requested change. The Administrative Judge will rule on the request only after the directors of the concerned EEOC district offices have conferred on the matter.
If the Administrative Judge sets a hearing site that is outside the local commuting area of the agency's organizational component where the complaint arose, the agency must bear all reasonable travel and per diem expenses of complainants, their authorized representatives, agency representatives, and all witnesses approved by the Administrative Judge, except that an agency does not have the authority to pay the travel expenses of complainant's witnesses who are not federal employees.
The agency's obligation is limited to those costs which are legally payable in advance by the agency. See Decision of the Comptroller General, Matter of: Expenses of Outside Applicant/Complainant to Travel to Agency EEO Hearing, File: B-202845, 61 Comp. Gen. 654 (1982); see also Decision of the Comptroller General, Matter of: John Booth - Travel Expenses of Witness - Agency Responsible, File: B-235845, 66 Comp. Gen. 310 (1990).
Any employee testifying at a hearing is entitled to official time for the time s/he spends testifying as well as a reasonable amount of time for travel to and from the hearing. The class agent and agent's representative, if employees of the agency where the complaint arose and was filed, are entitled to official time for actual time spent at the hearing and for a reasonable amount of time spent preparing for the hearing.
An agency may permit its employees to use official time in preparing and presenting a class complaint which arose in another agency.
The Administrative Judge shall transmit to the agency a report of findings and recommendations on the complaint, including a recommended decision, systemic relief for the class, and any individual relief, where appropriate, with regard to the personnel action or policy that gave rise to the complaint. The report of findings and recommendations shall be sent to the agency together with the entire record, including the transcript. The Administrative Judge shall also notify the class agent, in a separate communication, of the date on which the report of findings and recommendations was forwarded to the agency. § 1614.204(i)(1).
If the Administrative Judge finds no class relief appropriate, s/he shall determine if any finding of individual discrimination is warranted and, if so, shall recommend appropriate relief. § 1614.204(i)(2).
Within sixty (60) days of receipt of the report of findings and recommendations issued by the Administrative Judge, the agency must issue a decision to accept, reject, or modify those findings and recommendations. If the agency does not issue the final decision within 60 days, the Administrative Judge's findings and recommendations will become the final decision of the agency.
The agency must transmit its final decision to the agent within five days of the expiration of the 60-day period.
The final agency decision finding of discrimination will be binding on all members of the class and on the agency. A finding of no discrimination is not binding on a class member's individual complaint. Class members may not "opt out" of the class action while it is pending.
The agency shall notify class members and the class representative of the decision and relief awarded, if any, through the same media employed to give notice of the existence of the class complaint. The notice, where appropriate, shall include information concerning the rights of class members to seek individual relief and of the procedures to be followed. Notice shall be given by the agency within ten (10) days of the transmittal of its decision to the agent. The notice shall include the period for which the relief will be available and stating it in terms of precise calendar days, e.g., between 6/30/90 and 9/1/97.
Where a finding of discrimination against a class has been made, there is a presumption of discrimination as to each member of the class. The agency has the burden of proving by clear and convincing evidence that a class member is not entitled to relief. See § 1614.204(l)(3).
Within thirty (30) days of receipt of notification of the final agency decision, a class member who believes that s/he is entitled to individual relief must file a written claim with the head of the agency, or with the agency's EEO Director.
The claim must include a specific, detailed showing that:
Where a finding of discrimination against a class has been made, there shall be a presumption of discrimination as to each member of the class. The agency must show by clear and convincing evidence that any class member is not entitled to relief.
Within ninety (90) calendar days of receiving an individual claim, the agency must issue a final decision on that claim. The agency's final decision must include a notice of the right to file an appeal or a civil action within the applicable time limits. The decision must include a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix K).
The agency or the Commission may find class-wide discrimination and order remedial action for any policy or practice in existence within forty-five (45) days of the class agent's initial contact with the EEO Counselor. Relief may be ordered for the time the policy or practice was in effect. Under the continuing violation theory, incidents occurring earlier than 45 days before contact with the EEO Counselor must also be remedied provided the initial contact with the EEO Counselor was timely and the earlier incidents were part of the same continuing policy or practice found to have been discriminatory. Where contact with the EEO Counselor is timely as to one of the events comprising the continuing violation, then the counseling contact is timely as to the entire violation. See § 1614.204(l)(3). This 45-day time period does not limit the two-year time period for which back pay can be recovered by a class member.
The agency shall, within sixty (60) calendar days of issuance of the final decision, acknowledge receipt of an individual complaint as required in § 1614.106(d) and process in accordance with the provisions of subpart A, each individual complaint that was subsumed into the class complaint.
If it is found that the class agent or any other member of the class is a victim of discrimination, the relief provisions of § 1614.501 shall apply.
Federal employees who are agents, claimants, representatives of agents or claimants, witnesses, or agency officials having responsibility for processing class complaints may file individual discrimination complaints if they believe they have been subjected to restraint, interference, coercion or reprisal because of their involvement in the presentation and/or processing of a class complaint. EEO counseling must precede the filing of such complaints.
Chapter 7 | Table of Content | Chapter 9
1. The term "move" in this context means that the complainant must make his/her intention to process the complaint as a class action clear to the investigator if the complaint is still in the investigation phase of the process, to the Administrative Judge if the complaint is at the hearing phase of the process, or to the agency if the investigation has been completed and the complainant has not elected to proceed to a hearing. A complainant may make his/her intention clear through a letter, a formal motion, or any means that effectively informs the agency, investigator (if the matter is within the investigation phase of the process), or Administrative Judge of the complainant's intent to pursue a class action.
2. The Administrative Judge's order to the parties should make clear what sanctions or other actions may be imposed for a failure to comply with the order within the time set forth therein. Where an order did not put a party on notice that it could be sanctioned for a noncompliance or did not put the party on notice of the type of sanction that the Administrative Judge now seeks to impose, the Administrative Judge must issue a notice to show cause to the party for an explanation why the sanction should not be imposed and provide an opportunity to cure the noncompliance before imposing the sanction.
3. Section 1614.204(j)(5) provides: "The final decision of the agency shall require any relief authorized by law and determined to be necessary or desirable to resolve the issue of discrimination."
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