Filing and Presentation of the Class Complaint

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

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. 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.

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: [email protected]

III. INDIVIDUAL COMPLAINTS FILED ON BASES AND ISSUES IDENTICAL TO CLASS COMPLAINTS

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.² The agency decision shall notify the complainant of his/her right to appeal the abeyance determination to the Commission.³ 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.

2 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.

3 See Roos v. U.S. Postal Service, EEOC Request No. 05920101 (Feb. 13, 1992).

(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).

IV. CERTIFICATION OR DISMISSAL - 29 C.F.R. § 1614.204(d)

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).