Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019003557 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juli Z.,1 Class Agent, v. Andrew Wheeler, Administrator, Environmental Protection Agency, Agency. Appeal No. 2019003557 Hearing No. 280-AO-4324X Agency No. 2000-0096-R7 DECISION On May 22, 2019, the former Class Agent (CA1), through class counsel, filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated April 11, 2019, concerning CA1’s class complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. ISSUE PRESENTED The issue presented is whether an EEOC Administrative Judge (AJ) properly decertified the class due to failure to meet the regulatory criteria for class complaints set out in 29 C.F.R. §1614.204(a)(2). BACKGROUND On July 20, 2000, CA1 and another putative class agent (CA2) filed a class action EEO complaint, alleging discrimination based on age (at least 40 years old) and race (African- American) when, beginning on May 11, 1998, the Agency provided preferential treatment and 1 This case has been randomly assigned a pseudonym which will replace the former Class Agent’s name when the decision is published to non-parties and the Commission’s website. 2019003557 2 opportunities for career development and pay advancement to new hires in Region 7 (Kansas City, Kansas), to the detriment of older employees and a sub-class of older African-American employees. On June 1, 2002, the EEOC AJ assigned to the case dismissed the class complaint upon finding that the complaint did not meet the class-certification requirements set out in 29 C.F.R. §1614.204(a)(2). The AJ found that the record did not establish that the proposed class met the requirements of typicality or numerosity and that CA1, who was not represented by counsel, failed to demonstrate that she could adequately represent the interests of the class. The Agency issued a final order dated July 1, 2002, adopting the AJ’s dismissal of the class complaint and dismissing CA1’s individual complaint because she was not aggrieved. The class appealed the Agency’s final order to the Commission. Finding that the class established commonality, typicality, and numerosity, the Commission vacated the Agency’s final order and ordered the class conditionally certified for a reasonable period of time for CA1 to secure adequate representation. EEOC Appeal No. 01A24278 (Sep. 14, 2004). The Commission denied the Agency’s request for reconsideration, noting that on November 9, 2004, CA1 had designated class counsel as the representative for the class. EEOC Request No. 05A50178 (March 17, 2005). On remand, an AJ conditionally certified the class and provided the class 30 days to establish adequacy of representation. On August 1, 2005, the AJ found that, despite extending the 30-day period, class counsel had not established that he could adequately represent the class, citing his lack of class action experience and lack of resources. The AJ ordered the class provisionally certified for 60 days for the class agents to secure additional representation or for class counsel to associate himself with more experienced counsel. On January 17, 2006, the AJ denied class certification because the class had not secured additional representation and dismissed the class complaint for failure to satisfy the adequacy of representation requirement. The Agency issued a final order adopting the AJ’s decision. The class filed an appeal of the Agency’s final order. The Commission reversed the dismissal of the class complaint, finding that class counsel had experience in complex federal sector litigation and knowledge of EEO law that rendered him qualified to represent the class despite limited EEO class action experience. EEOC Appeal No. 01A62246 (Oct. 12, 2006), req. for reconsideration denied, EEOC Request No. 0520070139 (Jan. 9, 2007). On May 6, 2009, while discovery was ongoing, the class filed a motion seeking a 90-day stay because CA1 was the primary caregiver for her two children with medical problems and because CA2 was having vision problems. On May 28, 2009, the AJ granted the motion over the Agency’s objection, reasoning that the delay would likely prejudice the class just as much as, if not more than, the Agency. On October 23, 2009, the AJ issued an order after a status and discovery conference, ordering that discovery would close on June 4, 2010. 2019003557 3 On February 24, 2010, the Agency noticed the depositions of CA1 and CA2 for March 2010 in Kansas City, Kansas. On March 2, 2010, class counsel filed a motion for leave to seek new class agents. According to the motion, CA1 and CA2 were no longer able to carry out their responsibilities as class agents. Class counsel also filed a motion for a protective order and for a partial stay on March 2, 2010. According to the motion, deposing CA1 and CA2 would be an undue burden because CA1’s son was terminally ill and because CA2 continued to have vision problems. The motion also stated that the Agency should be required to allow class counsel to participate in any depositions by video using video conference facilities at Agency Headquarters in Washington, D.C. On March 17, 2010, the AJ denied the class’s request for a stay but temporarily stayed the proceedings pending receipt and review of medical documentation. On June 9, 2010, the AJ ordered the class to provide additional medical documentation. On August 29, 2010, the case was transferred to a different AJ. On October 22, 2010, the Agency filed a motion to decertify the class and vacate the stay. On December 6, 2010, the new AJ denied the Agency’s motion to decertify the class and vacate the stay and ordered the Agency to allow class counsel to use its video conferencing equipment to participate in the depositions. However, the AJ’s order stated that the class would bear any and all reasonable expenses associated with using the Agency’s video conferencing equipment. On January 31, 2011, the Agency sent class counsel a letter, stating that it would soon be noticing the depositions of CA1 and CA2. The Agency stated that class counsel could use the Agency’s video conference equipment to participate from Washington, D.C. but that the expenses would likely be in excess of $200 per hour. The Agency alternately proposed exploring the feasibility of allowing class counsel to participate remotely using a private video teleconference service. On February 11, 2011, the Agency noticed the depositions of CA1 and CA2. On March 10, 2011, the AJ granted the class 30 days to arrange for the substitution of new class agents, citing a letter from CA1 that stated that she and CA2 wished to withdraw as class agents. On April 18, 2011, class counsel filed a motion to substitute two new proposed class agents, CA3 and CA4, for CA1 and CA2. On May 18, 2011, the AJ reopened discovery for 60 days for the purposes of responding to the class’s motion to substitute. On June 10, 2011, the Agency noticed the depositions of CA3 and CA4 for later that month. On June 22, 2011, the Agency issued amended depositions, noticing the depositions of CA3 and CA4 for July 7 and 8, 2011, respectively, at the Agency’s Region 7 facility in Kansas City, Kansas. On June 23, 2011, the AJ issued an order, which stated that it had been brought to her attention that class counsel had attempted to circumvent her previous order by contacting the Director of Commission’s Kansas City Area Office without the AJ’s knowledge, in an apparent attempt to procure free use of EEOC video conference equipment to participate in the depositions from EEOC Headquarters in Washington, D.C. 2019003557 4 The AJ warned that further attempts to circumvent her orders would subject the class to sanctions and ordered that class counsel could use EEOC video conference equipment if he arranged such use through the AJ and the class paid the reasonable expenses associated with the use of the EEOC equipment. The associated cost of using the EEOC equipment was $55 per hour. The depositions did not occur in July 2011, and class counsel filed a motion for a protective order regarding the depositions, in which he requested no-cost access to Commission video conferencing equipment. On December 13, 2011, the AJ ordered the parties to discuss scheduling the depositions of CA3 and CA4 for February 2012. The AJ’s order indicated that she would arrange for the availability of EEO video conferencing equipment in the Commission’s Kansas City and Headquarters offices and that class counsel would need to arrange to pay the Commission $55 per hour for the use of the equipment. The depositions did not take place in February 2012. On March 27, 2012, the case was transferred to a different AJ. The Agency filed a motion to decertify the class and for sanctions. According to the record, there was no case activity until July 2015. On August 1, 2016, the AJ held a status conference with a court reporter. During the status conference, the AJ ordered the parties to brief various outstanding issues, including providing class counsel 90 days from the date he received the transcript to report back to the AJ on efforts to find additional counsel to represent the class. On September 1, 2016, class counsel filed a motion for a 30-day stay because CA3 had indicated that she was no longer interested in serving as a class agent and because CA4, who was willing to serve as a class agent, had recently had a stroke. On September 6, 2016, the AJ denied the motion for the stay, but extended the briefing schedule by 10 days and extending the deadline to produce CA4 for a deposition by 21 days. In the order, the AJ advised class counsel that he should seek substitute class agents in the meantime. On October 21, 2016, the Agency noticed the deposition of CA4 for October 28, 2016, at the Agency’s Region 7 facility in Lenexa, Kansas. The Agency deposed CA4 as scheduled, and class counsel participated remotely using Skype. After receiving the transcript of the deposition, the Agency filed its opposition to the class’s motion to substitute the class agent. The Agency argued that CA4’s claims were not typical of the class and that CA4 could not adequately serve as class agent because of his lack of understanding of the class action, his lack of communication with class counsel, and his lack of financial resources to prosecute the case on behalf of the class. The Agency also filed a motion to decertify the class, citing the lack of adequate representation by class counsel and CA4, as well as the lack of commonality and typicality. On March 15, 2017, the AJ found that CA4 was not an adequate class agent because he would have a conflict of interest as both the class agent and the sub-class agent, because of his limited understanding of the case, and because of his lack of resources. However, the AJ denied the Agency’s motion to decertify the class and granted the class 60 days to find substitute class agents. On May 15, 2017, the class filed a motion to substitute two new class agents (CA5 for the class and CA6 for the sub-class). On June 30, 2017, the AJ reopened discovery for 60 days for the limited purpose of responding to the class’s motion. 2019003557 5 On July 21, 2017, the Agency noticed the depositions of CA5 and CA6. The Agency deposed CA6 on August 24, 2017, and the Agency deposed CA5 on August 25, 2017. On October 10, 2017, the Agency filed its opposition to the class motion to substitute CA5 and CA6 as class agents. The Agency argued that, during his deposition, CA6 had demonstrated little familiarity with the class action or the responsibilities of a class agent and was reluctant to commit more than $4,000 towards the case. Although the Agency admitted that CA5 seemed to understand that class agents were responsible for financing the expenses of the case, the Agency noted that CA5 also was unwilling to commit more than $15,000 towards the case and suggested that she might create a Go Fund Me page to raise additional funds. Class counsel replied in support of the motion to substitute, but class counsel noted in the reply that CA5 was no longer willing to serve as class agent. Class counsel stated that CA4 and CA6 were willing to serve as class agents. On August 15, 2018, the AJ denied the class’s motion to substitute class agents. The AJ found that, assuming arguendo that CA4 and CA6 had sufficient knowledge of the case to act as class agents, CA4, CA6, and class counsel had not demonstrated that they individually or collectively had the resources to vigorously prosecute the case on behalf of the class. The AJ stated that he would entertain a motion to decertify the class based on adequacy of representation. The Agency submitted a motion to decertify the class on August 27, 2018, which the class did not oppose. On February 28, 2019, the AJ granted the Agency’s motion to decertify the class and recommended that the class be decertified due to the lack of adequate class agents and that the case be dismissed. On April 11, 2019, the Agency issued its final order fully implementing the AJ’s decision to decertify the class. In the final order, the Agency stated that, because CA1 and CA2 had requested dismissal of the complaint in 2011 and because no other EEO complaints had been subsumed in the class action, no individual complaint would be processed. On May 30, 2019, the AJ approved the Agency’s proposed notice of class decertification and proposed distribution plan, and he ordered the Agency to provide a copy of the notice to class members. CONTENTIONS ON APPEAL On appeal, the class contends through class counsel that the Agency retaliated against CA5, who was a current Agency employee, when it informed her that creating a Go Fund Me page could expose her to ethical violations. According to the class, CA5 only withdrew as putative class agent because she considered this a threat, and the class would have satisfied the adequacy of representation requirement if she had not withdrawn. Finally, class counsel contends that he is qualified to represent the class. In response to the appeal, the Agency contends that the AJ properly decertified the class and requests that the Commission affirm its final order. According to the Agency, because Go Fund Me has no mechanism to prohibit anonymous contributions or contributions from prohibited sources, it can afoul of regulations regarding legal defense funds for federal employees. 2019003557 6 ANALYSIS AND FINDINGS 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 her obligation to submit sufficient probative evidence to demonstrate satisfaction of the four regulatory criteria. William G. v. U.S. Postal Serv., EEOC Appeal No. 2019001459 (May 23, 2019); Mastren, et al. v. U.S. Postal Serv., EEOC Request No. 05930253 (Oct. 27, 1993). “Adequacy of representation” means simply that the class agent has demonstrated that she, or a designated representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2)(iv). The class agent must show that she is qualified, experienced, and generally able to conduct proposed litigation. See Drummond v. Dep't of the Army, EEOC Appeal No. 01940520 (Aug. 19, 1994). A putative class agent who is unable to procure sufficient funding is unlikely to adequately represent the interests of the class. See Thompson v. Tennessee Valley Authority, EEOC Appeal No. 01A34535 (Sep. 23, 2004). In the instant case, we concur with the AJ that the record does not establish that CA4 and CA6 have the necessary knowledge or skills to represent the interests of the class as class agents. Moreover, we agree that there is no evidence that CA4, CA6, or class counsel will be able to obtain the funds needed to represent the class. Class counsel was retained in November 2004, and since then he has been unable to obtain funding or associate himself with co-counsel possessing the needed resources.2 Moreover, the record reflects that a significant amount of the delay during the discovery process was attributable to class counsel’s refusal to cover the minimal expenses associated with using the Agency’s or the Commission’s video conferencing equipment. Therefore, the class has not established the existence of class agents or a class representative who can fairly and adequately represent the interests of the class. We note that there are no individual complaints from CA4 or CA6 regarding this matter to process. 2 To the extent that the class argues that the class would have satisfied the adequacy of representation requirement had CA5 not withdrawn, we find that, although CA5 demonstrated a better understanding of the class complaint and the requirements of litigating a class action, the class still would have had insufficient resources if it had the $15,000 CA5 was willing to contribute towards the case if she were class agent. Furthermore, we find no indication that the Agency took any action that compelled CA5 to withdraw as class agent. 2019003557 7 CONCLUSION We AFFIRM the Agency’s final order fully implementing the AJ’s decision to decertify the class due failure to satisfy the regulatory requirement of adequacy of representation. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. 2019003557 8 Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 19, 2020 Date