199. 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 regulations for the acceptance and/or rejection of the class complaint filed on October 4, 1977, at the [Page 805] Department of State by Ms. JulieAnn McGrath. The basis of the complaint is that the Department of State has implemented policies and engaged in practices which have deprived the class of equal employment opportunity because of sex with respect to recruitment, examination, appointment, reappointment, training, assignment, evaluation, promotion, and affirmative action.
The Civil Service class complaint regulations set forth a number of conditions which must be met before a class complaint can be accepted. First, the agent for the proposed class has 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 he2 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 agent has 15 days from his3 receipt of the notice of final interview in which to file a signed and written formal complaint. The formal complaint 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 agent may not challenge any policy or practice which did not adversely affect her personally. 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 his5 representative must fairly and adequately protect the interests of the class.
In this case Ms. McGrath contacted an EEO Counselor on August 23, 1977. She advised the Counselor that she wanted to initiate a class complaint and submitted her allegations of sex discrimination to counseling. The counseling was unsuccessful. Ms. McGrath was given her Notice of Final Interview on September 22, 1977, and she filed a formal complaint on October 4, 1977. In view of the above, the Examiner finds that the allegations in this complaint were submitted to counseling and that the formal complaint was filed within 15 days of the Notice of Final Interview. The remaining relevant requirements for a class complaint, [Page 806] together with the Examiner’s recommendations are discussed below under the separate allegations.
Training, Promotions, Evaluations, and Position Assignments
Ms. McGrath challenges the Department’s policies and practices in connection with position assignments, training, promotions and evaluations in behalf of herself and the class. These practices and policies, however, are being tested by the same class in the complaint filed by Ms. Allison Palmer6 which is currently pending in the Department. Because these practices and policies are being challenged in a previously accepted complaint, the Examiner recommends that they be rejected from this complaint (5 CFR section 713.604(b)(2)).
Recruitment, Examination, and Appointment
Next, Ms. McGrath alleges that she has been subjected to discrimination by the Department’s recruitment, examination, and appointment policies and practices, and asserts these claims in behalf of herself and the class. Ms. McGrath was appointed to an FSO position in January of 1964. Because any adverse effect upon Ms. McGrath which resulted from the Department’s examination and recruitment practices must have occurred prior to the appointment, and because the appointment was made more than 90 days before the counselor contact, the Examiner finds that the individual claims on which Ms. McGrath seeks to base the class complaint are untimely and, therefore, that the class complaint is also untimely (5 CFR section 713.604(b)(4)). In addition the record does not disclose, especially since Ms. McGrath was appointed to an FSO position, what specific adverse effect, if any, the alleged discriminatory practices had on her (5 CFR section 713.603(b)). Accordingly, the Examiner recommends that these allegations be rejected from the class complaint.
Ms. McGrath alleges that she has been discriminated against in her functional assignments “in that she has been relegated to the budget and finance specialty which is domestic oriented”. She seeks to challenge the Department’s functional assignment practices in behalf of herself and the class. Ms. McGrath is currently employed in the Foreign Service Reserve (FSR). FSR employees are assigned primarily to positions whose functions are of a highly specialized nature and to those positions whose functions are predominantly or exclusively oriented in the United States. Ms. McGrath’s complaint is that she is assigned to one of the FSR functions which is domestically oriented. In contrast to domestically oriented [Page 807] FSR positions, FSO positions are located both in the United States and abroad, and over the course of a career, an FSO will normally alternate between foreign and domestic posts. Nothing in the record indicates that FSOs are assigned to domestically oriented functions as FSR employees are. Because Ms. McGrath is not an FSO and because FSO and FSR positions do not bear similar relationships to assignments to domestically oriented functions, the Examiner finds that Ms. McGrath’s claim that she was subjected to discrimination in her assignment to a domestically oriented function would not be typical of the claims of the class of female FSO’s. The Examiner recommends that this allegation be rejected from the class complaint.
Ms. McGrath claims that her career as an FSO was adversely affected by the Department’s failure to overcome and eliminate the pattern and practice of sex discrimination against female FSOs through an adequate and effective Affirmative Action Plan and by its failure to implement EEO principles in all aspects of its personnel procedures. The record shows that Ms. McGrath was employed as an FSO between 1964 and 1973. Inasmuch as she has not served as an FSO since 1973, her individual claim of discrimination in this matter is untimely. Because Ms. McGrath cannot assert a timely individual claim, the class complaint is also untimely. The Examiner recommends that this allegation be rejected from the class complaint (5 CFR section 713.604(b)(4)).
Ms. McGrath resigned as an FSO in November of 1973. In March of 1975 she applied for a reappointment as an FSO. On August 5, 1977, after lengthy consideration and her appointment to an FSR position, the Department denied her application for reappointment. Ms. McGrath alleges that she was discriminated against by the Department’s reappointment policies and practices and seeks to challenge them in behalf of herself and the class of present and future female FSOs and present and future female applicants for FSO positions.
There are two initial questions that must be resolved concerning the proposed class. The first question is whether the proposed class is too broad. The Civil Service regulations provide that:
A “class” is a group of agency employees, former agency employees and/or applicants for employment with the agency, on whose behalf it is alleged that they have been, are being, or may be adversely affected by an agency personnel policy or practice . . . (5 CFR section 713.601(a)).
The regulations do not provide for the inclusion of future employees or future applicants in a class. As a result, the Examiner finds that future employees and future applicants may not be included in the current class.[Page 808]
The second question is whether Ms. McGrath, who was only an applicant for reappointment to an FSO position, has standing to bring a complaint in behalf of a class which includes female FSOs. Section 713.601(a) of the regulations confers standing upon an agent, who was personally adversely affected by an agency policy or practice, to bring a complaint in behalf of current employees who may be adversely affected by the challenged policy or practice. Since it is likely that the Department’s alleged discriminatory reappointment policies and practices would have a negative impact on a female FSO’s decision to resign and, if she did resign, would have a negative impact on her opportunity for reappointment, the Examiner finds that female FSOs are among the group of employees who may be adversely affected by the challenged policy. Accordingly, the Examiner finds that Ms. McGrath has standing to represent currently employed female FSOs in this particular claim. The class, then, should consist of current female FSOs and current applicants for reappointment to FSO positions.
The Examiner has reviewed the record for compliance with the remaining requirements for a class complaint. It shows that Ms. McGrath consulted an EEO Counselor in a timely fashion and that this allegation has not been raised in a previous complaint in behalf of the same class. It also shows that the class contains more than 300 persons, that the allegation raises a common question of sex discrimination and that the agent’s claim of sex discrimination is typical of the claims of the class. The class representative is adequate and there is no evidence to indicate that the interests of the agent are in conflict with the interests of the class. In view of the above, the Examiner finds that this allegation meets the regulatory requirements for a class complaint, and recommends that the allegation be accepted as a class complaint and that Ms. McGrath be accepted as the agent for the class of current female FSOs and current female applicants for reappointment to FSO positions.
In summary, the Examiner recommends that the Department reject all allegations from this complaint except for the allegation challenging the Department’s reappointment policies and practices.
EEO Complaints Examiner
- Source: National Archives, RG 59, Records of the Under Secretary for Management (M), 1977–1978, Box 8, Chron February 1978. No classification marking. Sent by registered mail with return receipt requested. Received in M/EEO on January 25. A copy was sent to Needham. An unknown hand wrote at the top of the letter, “Decision no: DC713A80013.”↩
- An unknown hand circled “he.” It should read “she.”↩
- An unknown hand circled “his.” It should read “her.”↩
- Class Complaints of Discrimination.↩
- An unknown hand circled “his.” It should read “her.”↩
- See Document 195.↩