195. Letter From David C. Kane, EEO Complaints Examiner, Civil Service Commission to the Deputy Assistant Secretary of State for Equal Employment Opportunity (Burroughs)1
This constitutes my recommendations under the provisions of section 713.604 of the Civil Service regulations2 for the acceptance or rejection of the class complaint filed on May 12, 1977, at the Department of State by Laurel M. Cooper, Mary Finrow, Mary Lee Garrison, Mary Hartman, Marguerite Cooper King, Alison Palmer, Mary A. Ryan, Amelia Ellen Shippy, American Federation of Government Employees (AFGE) Local 1534, Thomas Legal Defense Fund, and Women’s Action Organization, in behalf of themselves and all present and future female Foreign Service Officers (FSO) and all present and future female applicants for FSO positions. The basis of the complaint is that the Department of State has implemented policies and engaged in practices which have systematically deprived class members, including the individual agents noted above, of equal employment opportunity on the basis of sex with respect to recruitment, examination, appointment, training, position assignments, evaluations, promotions, cone assignments, professional stature and recognition, awards, termination, and affirmative action.
The current complaint is the successor to a class complaint filed with the Department of State on June 17, 1976. That complaint was rejected by the Department of State on July 15, 1976, on the basis that the Civil Service regulations did not provide the Department with the authority to accept a class complaint. A class action was then filed in the Federal District Court for the District of Columbia. The Court issued its decision on December 6, 1976. In that decision the Court dismissed Finrow, Cooper, Hartman, Ryan and King from the action because they had not filed administrative complaints; dismissed AFGE Local 1534, Thomas Legal Defense Fund and the Women’s Action Organization from the action because the court lacked jurisdiction under 42 USC section 2000–16 to entertain their claims; denied certification of the class [Page 790] because the remaining complainants—Palmer, Shippy, and Garrison—were not fair and adequate representatives of the class; and remanded the claims of Palmer, Shippy and Garrison to the State Department to be processed as individual complaints.
On December 17, 1976, Ovsanna Harpootian together with Cooper, Finrow, Hartman, King, and Ryan, filed individual complaints and AFGE Local 1534, Thomas Legal Defense Fund, and Women’s Action Organization filed third party complaints. On January 12, 1977, Harpootian withdrew her complaint because of her pending retirement. In February of 1977, Palmer, Shippy, and Garrison also filed individual complaints with the agency. Although, these complaints were not filed as class complaints, they all raised substantially the same class issues that were raised earlier.
In March of 1977, the parties agreed to process the complaints, under the Civil Service class complaint regulations which would become effective in April of 1977. In accord with its understanding of the agreement, the Department cancelled all complaints except those of Palmer, Shippy and Garrison. In addition the agency decided to waive the time limits set forth in section 713.602 of the Civil Service class complaint regulations3 for Palmer, Shippy, and Garrison. The attorneys for the proposed class objected to the cancellation of the individual and third party complaints and advised the agency that all the complainants should be treated as agents for the proposed class.
On April 4, 1977, Palmer contacted an EEO Counselor and submitted to the Counselor a 44 page document entitled “Specification of Charges”. The Counselor considered Palmer as the spokeswoman for Shippy and Garrison, but did not consider her as the representative of any of the other named individuals or organizations. The counseling was unsuccessful and Palmer was sent a notice of final interview of May 4, 1977. On May 12, 1977 Cooper, Finrow, Garrison, Hartman, King, Palmer, Ryan, Shippy, AFGE Local 1534, Thomas Legal Defense Fund, and Women’s Action Organization filed a class complaint as agents for the class of present and future female applicants for FSO positions and present and future female FSOs.
The Civil Service class complaint regulations requires the agent for the proposed class to contact an EEO Counselor within 90 days of the matter giving rise to the agent’s allegation of individual discrimination. The agent must advise the counselor that she intends to file a class complaint and must submit the individual and the class aspects of the complaint to counseling. If the counseling is unsuccessful, the [Page 791] agent has 15 days from her receipt of the notice of final interview in which to file a signed and written formal complaint. The formal complaint, together with subsequent submissions under section 713.604(d) of the Civil Service regulations must set forth specifically and in detail: 1) a description of the agency personnel management policy or practice giving rise to the complaint; and 2) a description of the resulting matter which adversely affected the agent. The allegations raised in the complaint must be within the purview of part 713, subpart F of the regulations,4 and cannot consist of allegations that were contained in a previous complaint filed in behalf of the same class which is pending in the agency or which has been resolved or decided by the agency.
Finally, the class must be so numerous that a consolidated complaint of the class members would be impractical, the complaint must raise common questions of fact, the claims of the agent must be typical of the claims of the class, and the agent or her representative must fairly and adequately protect the interests of the class.
The agents raise a number of preliminary questions concerning the class complaint regulations which need to be resolved before the recommendations are made.
First, the agents argue that Federal Court decisions concerning Title VII class complaints brought under Rule 23 of the Federal Rules of Civil Procedure are controlling on federal employees’ rights under part 713, subpart F, of the Civil Service regulations. Although there are similarities between the Civil Service class complaint regulations, Rule 23 of the Federal Rules of Civil Procedure, and the case law developed by the Federal Courts, there are also differences; and where these differences exist, the Examiner is required to follow the regulations which were approved and promulgated by the Civil Service Commission. Consequently, the Examiner rejects the agents’ argument that prior Federal Court decisions control federal employee rights under the administrative class complaint regulations.
The second question concerns the standing of the proposed agents to represent the asserted class. The agents contend that they should all be allowed to represent the class of present and future female Foreign Service Officers and present and future applicants for Foreign Service Officer positions on each and every allegation raised by the class complaint. Alternatively, if multiple agents are not permissible under the Civil Service regulations, the agents contend that a single agent should be allowed to represent the class across the entire spectrum of alleged discriminatory employment practices. In support of the latter position, the agents cite a substantial body of case law which [Page 792] supports the proposition that an agent for a class alleging pervasive and systemic discrimination, such as the current class complaint, has standing to represent the class in all of the questioned employment practices as long as the agent alleges that she was adversely affected by at least one of the practices.
The Civil Service regulations define a class as a group of agency employees, former agency employees, and/or applicants for employment with the agency. The regulations do not provide for the inclusion of future employees or future applicants in the class. Only one agent may bring the complaint in behalf of the class and that agent, in order to have standing to attack a particular policy or practice, must have been personally adversely affected by the questioned policy or practice. In view of the regulations, the Examiner finds:
1) a class may not consist of future employees or applicants;
2) only one agent can bring a complaint in behalf of a class; and
3) a class complaint may not attack any alleged discriminatory policy or practice unless the agent was personally adversely affected by that policy or practice.
The last question concerns timeliness. The agents argue that the 90 day time limit for contacting a counselor should not bar a class complaint arising from a matter which occurred outside the time limit if it is alleged that the pattern of discriminatory conduct continued into the 90 day period. The Examiner recognizes that there is support in the case law for this argument. However, the Civil Service regulations do not provide for the expansion of the time limit on the basis of an allegation that the pattern of discriminatory conduct continued into the 90 day period, and the regulations have not been interpreted to allow for the expansion of the time limit on such a basis. As a result, the Examiner finds that an alleged continuing pattern of discriminatory conduct is not a sufficient reason to extend the time limit for contacting a counselor or to accept a class complaint which would otherwise be untimely.
The agents assert, even in the absence of an allegation of a continuing pattern of discriminatory conduct, that some matters occurring outside the 90 day time period, such as evaluations, training, assignments, etc., should be considered timely because they are matters of record and they are used by the Department in making current employment decisions which the agents can challenge in a timely fashion. The Examiner disagrees. The Department is entitled to treat past actions affecting employees as lawful if they are not subject to timely complaints. The fact that those past acts are factors in a current employment decision does not renew the employee’s opportunity to challenge them. Accordingly, while past actions may be used as evidence in regard to [Page 793] a timely issue of discrimination, they, themselves, cannot be considered as timely claims and cannot be treated as such.
Finally, the agents argue that the Examiner should recommend that the time limits for Palmer, Shippy, and Garrison be extended because the Department has already stated that it would waive the time limits for these three proposed agents. The agents also argue that the time limits for Cooper, Finrow, Hartman, King and Ryan should be extended to May 5, 1976, 90 days prior to the date on which these agents joined the class action that was pending in Federal District Court. The latter argument is based on the propositions that the Department would not be harmed by the extension as it has known about the class complaint since June of 1976, and that it would be unfair to the agents not to do so because their failure to file timely administrative complaints was based on their belief that they could assert their claims in the class action which was then pending in Federal District Court.
The Examiner’s authority to recommend the extension of the time limits is limited to situations where it is shown that the agent was unaware of the time limit or was prevented by circumstances beyond her control from acting within the time limit. The Examiner finds that the agents have not met these criteria and, therefore, will not recommend the extension of the time limit for contacting a counselor. The Examiner, of course, is aware that the Department has indicated that it will waive the time limits for Palmer, Garrison, and Shippy, but under the regulations the Examiner cannot rely on the waiver in making the recommendations.
In anticipation of the Examiner’s rulings concerning standing and timeliness, the agents have divided their original class complaint into ten separate parts corresponding to the allegations. A primary and a secondary agent was then selected for each allegation as follows:
|Alleged Discriminatory Practices and Policies||Primary Agent||Secondary Agent|
|2. Position Assignments||Palmer||King|
|5. Cone & Function Assignments||King||Shippy|
|6. Termination (Selection Out)||Palmer||King|
|8. Denial of Professional Stature & Recognition||Palmer||King|
|9. Lack of Affirmative Action||Palmer||Shippy|
|10. Recruitment, Examination, and Appointment||Hartman||Ryan|
For purposes of analysis, each of these allegations can be considered a separate class complaint which must meet all the requirements for a class complaint before it can be accepted.
As noted above, four of the criteria for the maintenance of a class complaint are numerosity, commonality, typicality, and adequacy of representation. In this complaint, the record reveals that there are more than 300 female FSO’s employed at the Department of State. The record does not disclose the number of female applicants involved in the complaint, but the Examiner finds it reasonable to believe that their number is sufficiently large to make consolidation impractical. Each of the allegations raises a common question of sex discrimination and the agents’ claims of sex discrimination are typical of the claims of the asserted class. The record shows that the agents’ representative is adequate and does not present any reason to believe that the interests of the agents are in conflict with the interests of the class members. The Examiner is aware that the Federal District Court found that Palmer, Shippy, and Garrison were “not adequate and fair representatives of the class” on the basis that the prospective class members failed to express interest in the action when their support for the action was solicited. However, the Civil Service regulations do not require prospective class members to express interest in the complaint in order to find that the agents would fairly and adequately protect the interests of the class. In view of the above, the Examiner finds that each of the allegations meets the requirements for numerosity, typicality, commonality, and adequacy of representation. The remaining relevant requirements for the maintenance of a class complaint, together with the Examiner’s recommendations, are discussed below under the separate allegations.
Palmer contends that she has been subjected to discrimination by the Department’s policies and practices relating to training, and raises the claim in behalf of herself and the class of female FSO’s. The record shows that on February 5, 1977, Palmer was notified that she was denied training. The Examiner finds that Palmer was adversely affected by the alleged discriminatory training policies and practices within 90 days of the counselor contact, and since the other criteria for a class complaint are met, recommends that Palmer be accepted as the class agent and that the allegation be accepted as a class complaint.
Palmer contends that she has been discriminated against by the Department’s policies and practices in assignments to positions within her assigned cone. Specifically, she alleges that she has been assigned to a position with less substantive importance and less supervisory authority than male FSO’s. She seeks to challenge the Department’s [Page 795] position assignment policies and practices on behalf of herself and the class. The record shows that Palmer was assigned to the position of Agency Director for International Labor in July of 1975 and has continued in that position through the filing of the formal class complaint. Because her assignment to that position has been continuing and because the Department’s decision not to assign her to another position has been continuing, the Examiner finds that this allegation arises from a matter occurring within 90 days of the counselor contact and is, therefore, timely. Since the other criteria for a class complaint are met, the Examiner recommends that the agency accept Palmer as the class agent and accept the allegation as a class complaint.
Palmer and Shippy allege that they have been subjected to discrimination by the Department’s employee evaluation practices and policies. Each proposed agent seeks to challenge these policies and practices in behalf of herself and the class. The record shows that Palmer received performance evaluations in June of 1976 and 1977. Because Palmer’s first evaluation occurred more than 90 days before the counselor contact and the second evaluation occurred after the filing of the class complaint, and, therefore, could not have been submitted to the required counseling, the Examiner finds that Palmer cannot be the class agent on the question of evaluations. In contrast, Shippy received a memorandum of performance in February of 1977. Inasmuch as this memorandum was written within the 90 day period preceding the counselor contact and inasmuch as the other conditions of a class complaint are met in regard to Shippy, the Examiner recommends that the agency accept Shippy as the class agent and that the allegation be accepted as a class complaint.
In addition to the current evaluations, Palmer and Shippy specifically alleged that the 1974 performance evaluation discriminated against female FSOs. Because the 1974 performance evaluation occurred before the 90 day period for contacting a counselor, the Examiner recommends that this allegation be rejected as being untimely.
Palmer asserts that the Department has discriminatory practices and policies in regard to promotions and seeks to question those policies and practices in behalf of herself and the class of female FSO’s. The record shows that the last promotion list on which Palmer could have been promoted, and was not, was March 27, 1977. The Examiner finds then that Palmer was adversely affected by the Department’s allegedly discriminatory promotion policies and practices within 90 days of the counselor contact. As a result, and because the other criteria for a class complaint are met, the Examiner recommends that the agency [Page 796] accept Palmer as class agent and accept this allegation as a class complaint.
Cone and Function Assignments
King and Shippy allege that they have been discriminated against by the Department’s cone and function assignment policies and practices in that they were denied assignments in the political cone. Each proposed agent seeks to challenge these policies and practices in behalf of herself and the class of female FSO’s. The record shows, however, that King has been continuously assigned to the political cone since 1968 and that Shippy has been continuously assigned to the political cone since October 1973. Because neither of the proposed agents have been adversely affected by the Department’s practices and policies concerning cone and function assignments within 90 days of the counselor contact, the Examiner finds these claims untimely. Because neither of the nominated agents can assert a timely complaint, the Examiner recommends that this allegation be rejected.
Termination (Selection Out)
Palmer and King allege that they will be subject to termination through selection out procedures sometime in the future. Each agent seeks to challenge the Department’s selection out practices and policies as discriminatory in behalf of herself and the class of female FSOs. However, as of this date neither of the proposed agents have either been terminated or actually subjected to the selection out procedures. Because these proposed agents have not been adversely affected by the practices and policies which they wish to contest, the Examiner finds that they lack standing under the Civil Service regulations to bring a class complaint. The Examiner recommends that the agency reject this allegation as a class complaint.
Palmer asserts that she has been subjected to discrimination by the Department’s practices and policies concerning awards. Specifically, she contends that she was discriminated against in 1970, when she was awarded a Meritorious Service Award rather than the more esteemed Superior Honor Award for which she was nominated. Palmer wishes to attack the Department’s policies and practices concerning awards as discriminatory in behalf of herself and the class of female FSO’s. But the matter giving rise to Palmer’s individual complaint occurred more than 90 days before the contact with the counselor and is untimely. Because Palmer’s claim is untimely, she cannot be accepted as an agent. The Examiner recommends that this allegation be rejected.
Denial of Professional Stature and Recognition
Palmer and King allege that they have been denied professional stature and recognition in various ways because of their sex, and seek [Page 797] to assert this claim for themselves, as the proposed agents, and for the class. Palmer alleges that she was denied professional stature and recognition in May of 1977 at the International Labor Organization Conference in Geneva when she was: denied access to important meetings with foreigners; assigned menial tasks; denied opportunity to speak on behalf of the United States; paid less per diem than her male counterparts; not kept informed; and not asked her views at staff meetings. She further alleges that she was denied professional stature and recognition because: the Assistant Secretary did not ask her views on the Geneva Conference in June of 1977; she had to surrender office space and move her secretary when her Bureau expanded; her directorate has no reception area; she had inadequate secretarial and professional help; she has been given insubstantial and unimportant assignments; and because she has been barred from listing program direction as a primary skill on her Annual Personnel Audit Report because she has not been given two consecutive program direction assignments. King alleges that she has been denied professional stature and recognition in that: she was told that she would not be permitted to serve in Eastern Europe in 1956; she was not assigned responsible duties in 1958 and 1959; she was not assigned economic or commercial work between 1960 and 1962; she was considered the office mascot rather than a serious professional during 1973 and 1974; and in 1960 she was told that she could not expect to rise to a position of responsibility in the Near East Asia Bureau.
All of the incidents raised by King are untimely since they occurred more than 90 days before the counselor contact and, therefore, she may not be accepted as the agent for the class. The May and June incidents which adversely affected Palmer occurred after the counselor contact and were not submitted to counseling. Because these incidents were not submitted to counseling, and because Palmer has not offered a satisfactory explanation for her failure to submit these incidents to counseling, the Examiner recommends that the portion of this allegation that rests on these incidents be rejected. In addition, inasmuch as the Department’s practices and policies concerning position assignments are being challenged by the same class under a preceding allegation, the Examiner recommends that the portion of this allegation that rests on incidents concerning position assignments also be rejected.
The remaining matters relate to inadequate office space, and inadequate secretarial and professional help in Palmer’s current position as Agency Director for International Labor. It appears from the record that these alleged discriminatory conditions were in effect during the 90 days preceding the counselor contact. These claims, then, are timely. Because the other criteria for a class complaint are met, the Examiner recommends that the agency accept Palmer as the agent and accept [Page 798] the allegation as a class complaint as it relates to inadequate office space, inadequate secretarial help, and inadequate professional help. The Examiner does not recommend that the allegation—denial of professional stature and recognition—be accepted as it relates to other matters which did not adversely affect Palmer within 90 days of the counselor contact.
Palmer and Shippy claim that their careers as FSO’s have been adversely affected by the Department’s failure to overcome and eliminate the pattern and practice of sex discrimination against female FSO’s through an adequate and effective Affirmative Action Plan and by its failure to implement EEO principles in all aspects of its personnel procedures. Specifically, the agents allege that the Department:
1) has not required personnel to attend EEO meetings;
2) has not assigned sufficient staff to the EEO Office;
3) has not given the EEO Office adequate authority;
4) has not provided the EEO staff with adequate computer time;
5) has not instructed the overseas posts on EEO principles;
6) has not made a commitment at the highest levels to enforcement of EEO;
7) has failed to provide adequate counseling for female FSO’s in order to protect their careers from discrimination;
8) has not taken disciplinary action against officers who have violated EEO principles;
9) has allowed assignments of FSO’s to be vetoed by the staff of the receiving unit;
10) has failed to implement EEO principles in all aspects of its personnel decisions; and
11) has failed to implement its own Affirmative Action Plan for FY’76.
Palmer and Shippy seek to assert this claim for themselves, as the proposed agents, and for the class. The first eight practices set forth above relate to the Department’s EEO program rather than matters which specifically affected the proposed agents adversely. While it is true that the alleged inadequate EEO program might create an environment in which it is more likely that the agents would be subjected to discrimination, that type of effect is not sufficient under the Civil Service regulations to confer standing upon the proposed agents to challenge the EEO program practices and policies. Accordingly the Examiner recommends that the agency reject the portion of this allegation that relies on the first eight practices noted above. The ninth practice appears to concern position assignment practices and policies on which [Page 799] the Examiner has already recommended acceptance. Because of this previous recommendation the Examiner recommends that this practice be rejected from this allegation.
The tenth and eleventh practices refer in part to the Department’s failure to correct practices and policies which allow discrimination to occur in assignments, promotions, training, awards, and evaluations. To the extent that these practices refer to allegations which are otherwise acceptable as a class complaint, the Examiner recommends that they be considered as part of the allegation to which they refer. To the extent that these practices refer to allegations which are not accepted, the Examiner recommends rejection. As the result of the Examiner’s recommended handling of the practices challenged under this allegation, the Examiner recommends that this allegation be rejected as a class complaint.
Recruitment, Examination, and Appointment
Hartman and Ryan allege that they have been discriminated against by the Department’s policies and practices relating to recruitment, examination, and appointment, and seek to assert these claims for themselves and for the class of female FSO’s and female applicants for FSO positions. The record shows that Ryan was appointed to an FSO position on February 2, 1966, and that Hartman was advised that her application for an FSO position was rejected on June 7, 1976. Because any adverse effects upon the agents which resulted from the Department’s recruitment and examination policies and practices must have occurred prior to the appointment decision, and because the appointment decision concerning these proposed agents was made more than 90 days before the contact with the counselor, the Examiner finds that the individual claims on which these agents seek to base the class complaint are untimely. In addition, the Examiner notes that the record does not specifically disclose the adverse effects that the recruitment practices and policies had on either Hartman or Ryan, or the adverse effect that the examination practices and policies had on Ryan. Accordingly, the Examiner recommends that this allegation be rejected as a class complaint.
Throughout all the allegations, the agents have asserted discrimination in connection with many incidents, other than those discussed above, which occurred outside of the 90 day time period for contacting the counselor. After reviewing these incidents, the Examiner finds that they cannot now be raised in a timely fashion and recommends that the agency not accept a class complaint based on any of these incidents.
In summary, the Examiner recommends that the original class complaint be divided into two complaints, and that the class under each complaint be limited to current female FSO’s. The Examiner re[Page 800]commends that Palmer be accepted as the agent for the first complaint which challenges the Department’s practices and policies concerning training, promotions, position assignments, and professional stature and recognition, and that Shippy be accepted as the agent for the second complaint which questions the Department’s practices and policies relating to evaluations.
The Examiner recommends the rejection of all other allegations.
EEO Complaints Examiner
- Source: National Archives, RG 59, Records of the Under Secretary for Management (M), 1977–1978, Box 6, Chron November 1977. No classification marking. Sent by registered mail with return receipt requested. Received in M/EEO on November 15. A copy was sent to Helen Cohn Needham of the Law Offices of Bruce J. Terris, attorney for the plaintiffs. An unknown hand wrote at the top of the letter, “Decision No: DC713A80003.”↩
- Section 713.604 of the Civil Service regulations concerns acceptance, rejection, or cancellation of class complaints of discrimination.↩
- Section 713.602 of the Civil Service regulations concerns to precomplaint processing of class complaints of discrimination.↩
- Class Complaints of Discrimination.↩