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