Request No. 05A30910

Equal Employment Opportunity CommissionNov 24, 2003
05A30910 (E.E.O.C. Nov. 24, 2003)

05A30910

11-24-2003

Request No. 05A30910


Constance K. Throckmorton et. al v. Department of the Interior

05A30910

November 24, 2003

.

Constance K. Throckmorton et. al,

Class agent,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Request No. 05A30910

Appeal No. 01A03994

Hearing No. 320-AO-8196X

DENIAL OF REQUEST FOR RECONSIDERATION

The Department of the Interior (agency) timely initiated a request to the

Equal Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Constance Throckmorton v. Department of the Interior,

EEOC Appeal No. 01A03994 (May 6, 2003). EEOC Regulations provide that

the Commission may, in its discretion, reconsider any previous Commission

decision where the requesting party demonstrates 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. See 29 C.F.R. �

1614.405(b).

After a review of the agency's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to deny the request. The agency

contends that the Commission's decision certifying a class action

was based on an erroneous interpretation of material fact in that

complainant, Throckmorton, cannot provide adequate representation for

the putative class. According to the agency, complainant has no legally

redressable injury and cannot adequately represent the class because her

own individual appeal, taken before the Merit Systems Protection Board

(MSPB) on the same matter as that raised in the class action, was denied.

For this reason, the agency argues, complainant, has no standing to

represent the class before the EEOC.

The agency distinguishes certain cases in which the courts and the

EEOC have held that a complainant who has previously litigated his/her

individual claim is not disqualified from later serving as a class

representative. Walker v. Jim Dandy Co., 638 F.2d 1330 (5th Cir. 1981);

Tarrats v. Federal Deposit Insurance Corp. EEOC Appeal No. 01960433

(1998). The agency argues that the case at bar is different because it

is a mixed case appeal in which complainant was given a choice of forums.

The agency argues that, because complainant did not elect to proceed with

a mixed case complaint before the EEOC, she cannot have the discrimination

issues heard in another forum. Agency Brief p.7.

Complainant opposed the agency's request on the grounds that she did

not allege age or gender discrimination in her case before the MSPB,

and as such the matter was never considered. She also argues that the

class should be allowed to proceed even if the Commission finds she is

not qualified to be a class agent because her co-representative did not

pursue an MSPB appeal.

The Commission's decision to certify the class will stand as it was

made with full knowledge that complainant had pursued an individual

complaint before the MSPB and as such there has been no showing of an

erroneous interpretation of material fact. Unless there is evidence

that complainant's interests are or will become antagonistic to the

interests of the other class members, we are persuaded that the class

can be certified and that complainant may proceed as a class agent.

See Tarrats supra. Courts have found adequate representation even

where a plaintiff/class agent had an adverse ruling on an individual

claim of discrimination. Long v. Sapp 502 F.2d 34 (11th Cir. 1974)

(plaintiff/class agent permitted to represent a class of black female

employees challenging their discharge as racially motivated as long

as there was the necessary nexus with the proposed class); Satterwhite

v. City of Greenville, 634 F.2d 231 (5th Cir. 1981); Martinez-Mendoza

v. Champion Int'l Corp.340 F.3d 1200 (11th Cir. 2003) (plaintiff's

capacity to act as a representative of the class is not ipso facto

terminated when he loses his case on the merits). These cases are closely

analogous to the case at bar. In addition, there has been no change in

status of the co-representative, Nichols, nor have the parties indicated

that the class is no longer represented by an attorney.

The agency also argues that the Commission's decision should be

reconsidered because to allow it to stand will have a substantial impact

on the policies and practices of the agency. If the class is certified,

the agency contends, and complainant is allowed to proceed as a class

agent, it will encourage individuals with similar circumstances to use

the same strategy to �get several bites of the apple,� resulting in a

significant increase in claims. We are not convinced that the agency's

policies and practices will be substantially impacted by the Commission's

ruling. In order for any complainant to pursue a class action, he or she

must satisfy several criteria before proceeding, not just by demonstrating

the existence of a claim. See 29 C.F.R. 1614.204(a)(2). Moreover,

the agency has not established with any certainty, the likelihood that

complainants will be encouraged by our decision to file class actions

if their individual claims fail. For these reasons, we see no basis

to reconsider our decision that the class is adequately represented and

that the class should be certified.

The decision in EEOC Appeal No. 01A03994 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration. Our

order is restated in full below.

ORDER

It is the decision of the Commission to certify the following class:

geologists 40 years and over in the Denver area who were involuntarily

separated or downgraded due to the October 1995 RIF. The agency is

ORDERED to process the remanded class complaint in accordance with

29 C.F.R. �1614.302, as described in our previous decision (dated May

6, 2003). Within fifteen (15) calendar days of the date this decision

becomes final, the agency shall notify all potential class members of

the acceptance of the class complaint in accordance with the requirements

of �1614.204(e).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 24, 2003

__________________

Date