Management Directive 110
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, genetic information, 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 29 C.F.R. § 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 and file a complaint. The second stage is a determination from a Commission Administrative Judge, subject to agency final action, implementing or appealing the Administrative Judge's decision on class certification. The third stage, assuming that the complaint has been certified as a class action, involves a final decision from an Administrative Judge on the merits of the class complaint. The agency can either fully implement or appeal. If the agency appeals the Administrative Judge's final decision, it only has to appeal the parts of the decision that it is contesting. 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) of 29 C.F.R. 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 29 C.F.R. § 1614.105 and Chapter 2 of this Management Directive, with one exception, discussed below. Section 1614.105(a)(1) of 29 C.F.R. 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 29 C.F.R. § 1614.105(a)(2). The time period may be waived by the agency and is subject to estoppel and equitable tolling. See 29 C.F.R. § 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. 29 C.F.R. § 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. 29 C.F.R. § 1614.204(b). 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, that is, 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 in moving for certification will lead to denial of the class certification by the Administrative Judge. If a complainant moves for class certification after completing the pre-complaint process contained in 29 C.F.R. § 1614.105, no additional counseling is required. See 29 C.F.R. § 1614.204(b). 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. 29 C.F.R. § 1614.106(a). 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. 29 C.F.R. § 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. 29 C.F.R. § 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 Commission district office having jurisdiction over the agency facility where the complaint arose. Appendix N to this Management Directive is a list of the addresses of the Commission district and field offices, their geographic jurisdictions, and where federal employees and applicants should submit hearing requests.
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 Field Programs
Attn: Hearings Coordinator
131 M Street, NE
Washington, DC 20507
Email at: firstname.lastname@example.org
When a complainant who is a potential member of a class action files an individual complaint between the time a class complaint is filed and a final certification decision is issued, the agency must determine whether there are claims in the individual complaint that are identical to those that are presented in the class complaint. If the agency determines that claims in the individual and class complaints are identical, then the agency shall issue a written decision notifying the complainant that the portion of the complaint raising claims identical to the class complaint will be held in abeyance during the pendency of the decision to accept or reject the class complaint. The agency decision shall notify the complainant of his/her right to appeal the abeyance determination to the Commission. The agency decision must also contain, at a minimum, a description of the individual claims at issue; a description of the class complaint with the definition of the putative class; the class complaint counseling report; and the status of the class action, including the Commission field office to which the class complaint has been sent for a determination on certification, if applicable.
If, however, the agency finds that the claim in the individual complaint is not identical to the class claim then the individual complaint shall continue to be processed by the agency.
The Administrative Judge may dismiss a class complaint, or any portion, because it does not meet the prerequisites for certification or for any of the procedural grounds listed in §1614.107. If a potential class complaint is dismissed by the Administrative Judge, the Agency's final order adopting the dismissal shall include notification to the class agent(s) that his/her complaint will be processed as an individual complaint, or that the individual complaint is also dismissed in accordance with §1614.107. In addition, within forty (40) days of receipt of an Administrative Judge's decision dismissing a putative class complaint the agency shall issue an acknowledgment of receipt of an individual complaint as required by 29 C.F.R. §1614.106(e) and process each individual complaint that was held in abeyance because of the class complaint.
If a class complaint is certified, all individual complaints that raise claims identical to the definition of the class claim(s) shall be subsumed within the class complaint. When the class claim proceeds to a hearing on the merits, the subsumed individual claim(s) may be presented during the liability stage by the class agent, or at the remedy stage by the individual complainant. If class-wide discrimination is not found, the agency shall process each individual claim that was subsumed into the class complaint. See 29 C.F.R. §1614.204(l)(2).
(a) For an individual claim to be subsumed in an accepted class complaint, it must be identical in all respects to the class claim(s), including the issue and basis of discrimination alleged. When an individual complaint raises multiple claims, only those claims that are identical to those raised in the class complaint will be subsumed in it. The non-identical claims in the individual complaint shall be processed separately under the individual complaint process.
(b) When an agency makes a decision not to process an individual claim because it is identical to and subsumed by an accepted class complaint, it shall issue a decision advising the individual complainant of his/her right to appeal to OFO for a ruling on whether the individual claim should be subsumed in the accepted class claim(s). The agency decision must also contain, at a minimum, a description of the individual complaint at issue and a description of the certified class complaint and underlying certification decision(s).
The Commission will assign an Administrative Judge (or in some limited circumstances a complaints examiner from another agency may be assigned) to issue a decision on certification of the complaint. 29 C.F.R. § 1614.204(d).
A class complaint will be dismissed if:
The Administrative Judge shall deny class certification when the complainant has unduly delayed in moving for certification. See 29 C.F.R. § 1614.204(b).
The Administrative Judge may direct the complainant or agency to submit additional information relevant to the issue of certification. See 29 C.F.R. § 1614.204(d)(1).
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 the Commission 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. Dep't. of the Air Force, EEOC Request No. 05940917 (Jan. 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 29 C.F.R. § 1614.403 and append a copy of the appeal to the final order. The Commission has prepared a 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 VI.A, 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 29 C.F.R. § 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 processing ceased 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 transmit 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 - Complainant (Appendix P).
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 email) 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 fully implement or appeal the Administrative Judge's decision.
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 shall advise both parties that they will have at least sixty (60) days to develop evidence. 29 C.F.R. § 1614.204(f)(1). They can do this in the same manner as in individual cases, that is, 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, computers, internet, fax machines, email, printers, etc.) 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 29 C.F.R. § 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 certified class complaints are the same as those applied to hearings in individual complaints of discrimination and are set out in 29 C.F.R. § 1614.109.
The Administrative Judge assigned to hear the certified class 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 Commission district office, in a Commission 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 should consider factors such as the location of the parties; the location of the Commission 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 Commission district office, it must submit a request, in writing, to the Commission 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 Commission 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 class agents, 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 Expenses of Outside Applicant/Complainant to Travel to Agency EEO Hearing, File: B-202845, 61 Comp. Gen. 654 (1982); see also John Booth ( Travel Expenses of Witness ( Agency Responsible, File: B-235845, 69 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 his/her decision on the complaint to the parties. If there is a finding of discrimination, the decision shall include 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 decision shall be sent to the agency together with the entire record, including the transcript.
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 issue a decision on the appropriate relief to be provided by the agency. 29 C.F.R. § 1614.204(i).
Within sixty (60) days of receipt of the Administrative Judge's decision, the agency must issue a final order either fully implementing or simultaneously appealing the Administrative Judge's decision. If the agency does not issue the final order within sixty (60) days of receipt of the Administrative Judge's decision, the Administrative Judge's decision becomes the final action of the agency. 29 C.F.R. § 1614.204(j)(2).
The agency must transmit its final order to the class agent within five days of the expiration of the 60-day period.
The agency's final order on a class complaint must be in writing; notify the class agent whether the agency will fully implement the decision of the Administrative Judge; and contain a notice of the right to appeal to the Equal Employment Opportunity Commission, the right to file a civil action, and the applicable time limits. If the final order does not fully implement the decision of the Administrative Judge, the agency shall simultaneously file an appeal in accordance with 29 C.F.R. § 1614.403 and append a copy of the appeal to the final order. See 29 C.F.R. § 1614.204(j)(1).
The final agency action implementing the Administrative Judge's decision finding discrimination will be binding on all members of the class and on the agency. A final agency action implementing the Administrative Judge's decision finding no discrimination is not binding on a class member's individual complaint. Class members may not Aopt out@ of the class action while it is pending. See Section V.C of this Chapter.
The agency shall notify class members and the class representative of its final action 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 final action to the agent.
Where a finding of discrimination against a class is 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 29 C.F.R. § 1614.204(l)(3).
Within thirty (30) days of receipt of notification of the final agency action implementing the Administrative Judge's 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:
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 P).
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 pattern of discrimination 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 29 C.F.R. § 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 29 C.F.R. § 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 29 C.F.R. § 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.
Retaliation claims can be the subject of class actions where the plaintiffs establish a general practice of retaliation against employees who oppose discriminatory practices or exercise rights protected under Title VII. See, Holsey v. Armour & Co., 743 F.2d 199, 216-217 (4th Cir. 1984), cert denied, 470 U.S. 1028 (1985). The Commission has held that reprisal is an appropriate basis for a class when there is a showing that specific reprisal actions were taken against a group of people for challenging agency policies, or where reprisal was routinely visited on the class members. See Levitoff v. Dep't. of Agriculture, EEOC Appeal No. 01913685 (Mar. 17, 1992), request to reopen denied, EEOC Request No. 05920601 (Sept. 10, 1992); as cited in Powell, et. al. v. Dep't. of the Navy, EEOC Appeal No. 01974349 (Aug. 2, 2000).
 The term "move" in this context means that the complainant must make his/her intention to process the complaint as a class action clear. A complainant may make his/her intention clear through a letter, a formal motion, or any means that effectively informs the agency or Administrative Judge of the complainant's intent to pursue a class action.
 As a point of clarification, claims that are held prior to class certification are stated to be held in "abeyance" and claims that are referenced as being "subsumed" are claims that become part of the class action following class certification. When an individual complaint raises multiple claims, only those claims that are identical to those in the class complaint with respect to basis and issue are properly held in abeyance or subsumed. The non-identical claims in the individual complaint shall be processed separately by the agency under the individual complaint process.
 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.