Class Certification Denied. Complainant alleged that the Agency’s promotion system, while utilizing facially neutral annual selection boards, relied on subjective factors that manifest bias including “career promise,” mentor/mentee input, and relationship-forming potential. Complainant asserted that the reliance on such subjective criteria negatively impacted the advancement of Foreign Service Officers over the age of 40. The AJ denied class certification, and the Commission affirmed the decision on appeal. The AJ found that Complainant failed to establish commonality and typicality. Specifically, Complainant failed to establish how the use of the identified subjective criteria impacted those age 40 or older. Not only did Complainant fail to provide evidence of the application of such allegedly discriminatory criteria to himself, but he also failed to provide evidence from other class members concerning how they were harmed by the use of such subjective criteria. The AJ noted that while Complainant provided information in support of his claim of a statistically significant disparate impact on older workers seeking promotion, he failed to show how the use of the subjective criteria negatively affected other older Foreign Service Officers. Further, the Agency applied other criteria when considering promotions including specific career paths, postings, discipline, and employee evaluation reports, which were applied to eligible Foreign Service officers “in direct competition with others of their skill code and grade.” The Commission noted that Complainant failed to address the application of these other criteria in any way and failed to identify facts common to the class as a whole.” The AJ further found that Complainant failed to meet the typicality requirement because he had unique circumstances, specifically a negative employee evaluation, which undermined his assertion that his claim was typical of the class. The AJ found that the arguments Complainant made when grieving his 2014 evaluation regarding the importance of employee evaluation reports to his promotion prospects undercut his argument that promotions were based on subjective criteria. Therefore, the AJ properly concluded that Complainant failed to establish the requirements for class certification. The Commission remanded Complainant’s individual complaint for processing. Ty S. v. Dep’t of State, EEOC Appeal No. 2020005030 (Dec. 14, 2020).
EEOC Regulation 29 C.F.R. § 1614.204(a)(2) states that a class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent are typical of the claims of the class; and (iv) the agent of the class, or if represented, the representative will fairly and adequately represent the interests of the class. EEOC Regulation 29 C.F.R. § 1614.204(d)(2) provides that a class complaint may be dismissed if it does not meet the four requirements of a class complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. The class agent, as the party seeking certification of the class, carries the burden of proof, and it is his obligation to submit sufficient probative evidence to demonstrate satisfaction of the four regulatory criteria. Anderson, et al. v. Dep’t of Def., EEOC Appeal No. 01A41492 (Oct. 18, 2005).
…we find that the AJ properly concluded that Complainant failed to establish the commonality and typicality requirements for class certification. As such, we need not also address whether Complainant satisfies the numerosity and adequacy of representation requirements. We affirm the AJ’s decision to deny class certification in this case.