Simonv.et al.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 11, 2016

0520160037 (E.E.O.C. Feb. 11, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Simon V. et al.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Request No. 0520160037

Appeal No. 0720110008

Hearing No. 541-2008-00255X

Agency Nos. P-2004-0296, P-2000-0138

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0720110008
(September 15, 2015). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to 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(c).

Case I - Agency No. P-2000-0138

On March 26, 1999, Complainant first contacted an EEO Counselor and alleged that since
1994, there has been “continuous retaliation against African-American staff within the Bureau
of Prisons in the form of denied promotions, transfers, and reassignments.” On May 28,
1999, Complainant filed a class complaint on behalf of African American employees, asserting
claims of retaliation and race discrimination, including the retaliatory failure to promote,

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is
published to non-parties and the Commission’s website.
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harassment, and discipline. This complaint has been identified as Agency No. P-2000-0138.
In the complaint, Complainant attempted to certify a class of African-American Agency
employees throughout the United States, who have engaged in prior EEO activity.

On December 5, 2000, the Equal Employment Opportunity Commission Administrative Judge
(AJ) assigned to the matter determined that the case was not appropriate for class certification
because Complainant failed to identify any class members, other than himself, who were
allegedly denied transfers or promotions due to their prior EEO activity or race. The AJ found
the complaint consisted of simply bare allegations, without any supporting documentation. On
January 4, 2001, the Agency issued its final order fully implementing the AJ's decision.
Thereafter, the Agency began processing Complainant's individual complaint under that same
Agency Number.

In August 2004, Complainant attempted to amend Agency No. P-2000-0138, pursuant to 29
C.F.R. § 1614.204(b), to raise his class claims, but the Agency denied his request to do so.

Case II - Agency No. P-2004-0296

On August 11, 2004, Complainant again sought EEO counseling and alleged that he had been
subjected to reprisal when he was “black balled and was passed up for jobs that he felt he
should have received. Promotions and transfers, both on more than one occasion.”
Complainant advised the Agency that the complaint had class implications. As to timeliness,
he stated that the discrimination was “[o]ngoing and did not have a discriminatory single event
to report, but said it was a continuation of reprisal.” He also cited prior EEO complaints that
he filed in 1994 and 1999.

On September 22, 2004 Complainant filed a formal class complaint alleging that since 1994,
the Agency engaged in a pattern or practice of retaliating against employees who engaged in
EEO activity, including initiation of investigations, refusal to transfer, failure to promote,
disparate treatment in the terms and conditions of employment, surveillance, and harassment.
The Agency docketed this complaint as Agency No. P-2004-0296. The complaint was sent to
an AJ for a determination of whether the class should be certified pursuant to 29 C.F.R.
§1614.204(d).

Meanwhile, Complainant was awaiting a hearing before an AJ on his individual complaint,
Agency No. P-2000-0138. On October 24, 2004, the same AJ received Agency No. P-2004-
0296 for processing as a class complaint. On December 30, 2004, the AJ subsumed Agency
No. P-2000-0138 into P-2004-0296, which was now the class retaliation complaint.2

The AJ
ceased processing the individual retaliation complaint in P-2000-0138 and continued processing
the class complaint.

2 Complainant’s race allegation was held in abeyance pending the outcome of the class certification process.
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On February 15, 2005, Complainant again contacted an EEO counselor and alleged retaliatory
harassment due to the Agency's use of the investigatory process. He also claimed he was
issued a Letter of Suspension and requested that these harassment claims be added to his class
complaint. A formal complaint followed on March 14, 2005, and was assigned Agency No. P-
2005-0128. Therein, he alleged reprisal when he was suspended, denied sick leave and
harassed when he was subjected to investigations. Thereafter, Agency No. P-2005-0128 was
also subsumed into the class complaint (Agency No. P-2004-0296).

On December 2, 2005, the AJ assigned to the class complaint issued a decision granting class
certification, and defined the class as:

All Agency employees and former employees who engaged in protected EEO
activity and subsequently were subjected to retaliation, including initiation of
investigations and surveillance, denial of transfer requests, failure to promote,
discipline, disparate treatment in the terms and conditions of employment, and
harassment, from 1994 to the present.

In that decision, the AJ denied the Agency’s request that the AJ dismiss the complaint because
it was the same complaint as the prior class, which was denied certification in 2000. The AJ
disagreed because Case II was filed on reprisal only, and Case I was filed on race and reprisal.
The AJ also found that Complainant’s August 11, 2004 EEO contact was timely because on
August 10, 2004, Complainant learned that management officials had instructed Complainant’s
coworker to watch Complainant and report back. The AJ found that this type of monitoring
had preceded the initiation of investigations into Complainant's conduct and had resulted in
discipline in the past. Therefore, the AJ found that Complainant proved sufficient evidence of
the existence of a pattern and practice claim which included the initiation of investigations,
refusals to transfer, failure to promote, disparate treatment in the terms and conditions of
employment, surveillance, and harassment. Since these claims alleged a pattern or practice of
retaliation, National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002), was not
applicable. Accordingly, the AJ found the class complaint was timely filed, and encompassed
retaliatory adverse treatment of Bureau of Prisons employees from 1994 to the present.

EEOC Appellate Decisions 0720060041 and 0520070847

The Agency rejected the AJ's decision certifying the class, and appealed to the Office of
Federal Operations (OFO). On July 19, 2007, OFO affirmed the Agency's final decision, and
denied class certification. OFO found Complainant failed to identify a common policy or
practice of retaliation that applied to the class as a whole. See EEOC Appeal No. 0720060041
(July 19, 2007).

Thereafter, Complainant filed a Request for Reconsideration and requested that the
Commission certify a “redefined” class comprised only of employees who allege that they
were denied promotional opportunities after engaging in protected activity or to remand the
case to an EEOC Administrative Judge to allow Complainant the opportunity to conduct
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discovery on this “redefined” class. See EEOC Request No. 0520070847 (September 18,
2007). The Commission denied his Request.

Case III - Agency Nos. P-2004-0296 and P-2005-0128

The EEOC's Denver Hearings Unit continued to process Complainant's individual complaints
under Agency Nos. P-2004-0296 and P-2005-0128. On April 25, 2008, Complainant filed his
“Notice of Intent to Pursue Class Complaint” with the AJ assigned to Agency Nos. P-2004-
0296 and P- 2005-0128. On May 13, 2008, the AJ issued an Acknowledgement Order for
Class Certification, and Complainant thereafter asked that the following class be certified:

All Agency employees nationwide from January 1, 1994 to the present who
have been denied promotions based upon the Agency's policy or practice of
retaliating against employees because they engaged in Title VII EEO activity.

On September 30, 2010, the AJ issued a decision granting class certification. In her decision,
the AJ found Complainant established that common questions of fact and law existed between
Complainant and the putative class members. Specifically, the AJ found that all GS-14
promotions and leadership positions are decided by a common group, the Executive
Committee. The AJ found evidence which showed the individuals who comprise the Executive
Committee have knowledge of the applicant's EEO activity. Furthermore, the retaliatory
failure to promote was allegedly enforced by its “vouchering” practice, where selecting
officials engaged in informal discussions about applicants, and allegedly, prior EEO activity is
discussed.

The AJ described a culture of retaliation based on anecdotal comments contained in the class
members’ affidavits. For example, one putative class member alleged that a Warden referred
to the “GNC” club - the “Got Nothin Coming" club regarding EEO complainants. The AJ
found further allegations in other prior EEO complaints which suggested that Wardens, EEO
Officers, and Regional Directors considered prior EEO activity when making selection
decisions.

The AJ also noted that Complainant's expert’s testimony provided support for class
certification. The expert concluded that individuals who filed EEO complaints were promoted
at a significantly lower rate than those who did not. The AJ further noted that even when the
promotion rate for all employees was at its lowest, 12%, the promotion for individuals who
filed EEO complaints lagged significantly behind at 3%. The AJ also found that there was
considerable subjectivity in the decision making process, which, together with the anecdotal
evidence, supported commonality and typicality. Essentially, the AJ found that there was a
pattern or practice alleged of considering prior EEO activity when making promotional
decisions.

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As for numerosity, the AJ found Complainant provided over 100 affidavits, which satisfied the
numerosity requirement. Complainant identified almost 3,000 individuals nationwide, who
could potentially be part of the class. Moreover, the AJ found Complainant’s representatives,
two attorneys, were adequate representatives of the class.

The AJ certified the class claim as:

Whether Agency employees from January 1, 1994 to the present have been
denied promotions based upon the Agency’s policy or pattern and practice of
retaliating against employees because they engaged in protected Title VII EEO
activity. The scope of this case is nationwide.

The AJ also ordered the Agency to identify all pending complaints that raise the same issue as
identified in the class, and hold them in abeyance.

EEOC Appellate Decision 0720110008

On November 16, 2010, the Agency issued a Final Order rejecting the AJ decision granting
class certification and simultaneously filed an appeal.

On appeal, the Agency argued that the AJ erred when she determined that commonality existed
because the class members all work at different grades, job series, and institutions. The
Agency also determined that the AJ misread the testimony which purportedly found that the
Executive Committee had knowledge of all EEO complaints filed when making its selection
decisions.

The Agency also noted that the anecdotal evidence could not support commonality because it
was related to previously filed complaints where no findings of discrimination had been made,
or the evidence was related to cases that had already been settled. The Agency maintained that
selection decisions were decentralized, rather than organized around a centralized policy or
practice. Moreover, it found that the affidavits did not contain specific facts related to
nonselections, and were virtually identical to the affidavits submitted in the attempt to certify
this class in previous years.

The Agency also found no support for the AJ's decision that typicality existed because the
affidavits did not contain sufficient information. Indeed, the Agency pointed out that no
applicant flow data or relevant statistical information was included. Specifically, the Agency
pointed out that while Complainant’s expert stated that approximately 2,700 individuals failed
to receive promotions after engaging in protected activity, there was no applicant flow data to
determine whether these individuals were qualified for the positions, or even whether they
actually applied for the positions.

OFO affirmed the AJ’s determination that Complainant has stated a timely class claim for
retaliatory denial of promotions based on prior EEO activity.
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With regard to the prerequisites for class certification, OFO noted that the Agency, citing Wal-
mart Stores, Inc. v. Dukes, 131 S.Ct, 2541, 180 L.Ed.2d. 374 (2011), argued Complainant
has failed to demonstrate that the claims of the class members “depend upon a common
contention” and that there is “some glue holding the alleged reasons” for the decisions
together.

OFO noted that Wal-mart involved a proposed class consisting of more than a million potential
members involving many thousands of management decision-makers and the grant of
unfettered discretion to those managers to bind the purported class together. By contrast, OFO
noted that in the instant case, Complainant has identified a far smaller purported class of about
3,000. More importantly, the AJ determined that there were common questions of fact and
law between Complainant and the proposed class members - that Complainant's claims and
those of the proposed class members were linked by a common thread. Specifically, the AJ
pointed to evidence that established that all GS-14 promotions and “leadership” positions at
any grade were decided by a common group - the “Executive Committee,” a relatively small
group that exercised considerable subjectivity in their decision-making process. In addition,
the next level of promotions was controlled by the regional directors, who were also part of the
Executive Committee. OFO noted the AJ found evidence which showed the individuals who
comprised the Executive Committee had knowledge of the prior EEO activity of candidates for
promotion. Furthermore, OFO noted the AJ found that the class complaint alleged that the
retaliatory failure to promote was enforced by the Agency's “vouchering” practice, where
selecting officials engaged in informal discussions about applicants, and allegedly, prior EEO
activity was discussed. OFO also recognized that the AJ described an alleged culture of
retaliation which existed based on anecdotal comments contained in the class members'
affidavits.

After a review of the Agency's final order and brief on appeal, OFO found that the Agency
had not demonstrated that the AJ's findings on commonality and typicality were erroneous.
OFO found Complainant had alleged a sufficiently tailored class comprised of current and
former Agency employees who were denied promotions because of prior protected EEO
activity. Based on an independent review, OFO found no reversible error in the AJ's
conclusion that the putative class meets these two prerequisites.

In addition, OFO determined the number of members of the purported class satisfies the
requirement of numerosity and that the AJ's finding in this regard was affirmed. OFO noted
that the AJ found that Complainant provided over 100 affidavits, which satisfied the
numerosity certification requirement. OFO found that Complainant identified almost 3,000
individuals nationwide, who could potentially be part of the class.

OFO also affirmed the AJ's finding that Complainant's two attorneys possess the necessary
experience in class actions, discrimination claims, and the federal sector EEO process to
satisfy the adequacy of representation requirement.

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Instant Request for Reconsideration

In the subject request for reconsideration, the Agency argues that Complainant failed to
produce sufficient evidence to meet the burden under Wal-mart Stores, Inc. v. Dukes, 131
S.Ct., 2541, 180 L.Ed.2d. 374 (2011). Specifically, the Agency stated that selections that are
not made by the Executive Committee are handled at the over 115 institutions by the Wardens
of those institutions. The Agency argues there has been no evidence put forth by the class
agent that demonstrates that the Executive Committee disseminates candidates’ EEO history to
Wardens making lower level selections. The Agency claims the class has not identified any
Agency-wide policy that is uniformly applied in selections made throughout the country.
Therefore, the Agency claims Complainant cannot show individuals who were subject to
selections made by Wardens were treated in the same manner as individuals who were subject
to selections by the Executive Committee. The Agency argues the certified class should be
narrowed to only include selections that were made by the Executive Committee members, as
it states that no evidence has been presented that any policy or practice the Committee
allegedly exercised was disseminated to the hundreds of Wardens in the field during the over
20-year recovery period.

The Agency states that in the event that the class is not decertified, it seeks guidance as to what
OFO is requiring regarding notice to potential class members. The Agency notes the AJ’s
decision and Order states that any notice should be limited to individuals who have actually
filed complaints alleging discrimination based on retaliation when they were not selected for a
position. However, the Agency states that OFO ordered the Agency to “Notify all potential
class members of the accepted class claim within fifteen (15) calendar days of the date this
decision becomes final, in accordance with 29 C.F.R. § 1614.204(e).” Absent decertification,
the Agency seeks clarifying language from OFO what is required regarding notice to potential
class members. The Agency requests OFO limit notice to only potential class members who
have actually made timely contact with an EEO Counselor and filed a timely complaint
alleging reprisal based on nonselection, as detailed in the AJ’s Order.

In response to the Agency’s request for reconsideration, Complainant argues the Agency’s
request is nothing more than a second appeal. Complainant notes that the Agency’s request
restates the same Wal-mart issues previously raised by the Agency. With regard to the
Agency’s request for guidance as to what OFO is requiring regarding notice to potential class
members, Complainant requests the Commission allow the AJ to address the issue regarding
notice to the parties.

After a careful review of the Agency's Request, we find the Agency has failed to meet the
criteria for reconsideration. The Agency's arguments in their Request were also raised on
appeal and given their due attention at that time. We further note that a “request for
reconsideration is not a second appeal to the Commission.” Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.A (Aug. 5,
2015); see, e.g., Lopez v. Dep't. of Agriculture, EEOC Request No. 0520070736 (Aug. 20,
2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous
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decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a
substantial impact on the policies, practices, or operations of the Agency. The Agency has not
done so here. Despite the Agency's arguments in its Request, we find the combination of
factors identified by the AJ in her decision support a finding of commonality and typicality.
We find that the Agency has not demonstrated that the AJ's findings on commonality and
typicality are erroneous. Complainant has alleged a sufficiently tailored class comprised of
current and former Agency employees who were denied promotions because of prior protected
EEO activity. Furthermore, we find that restricting the class notice to only individuals who
have made timely EEO Counselor contact or filed an EEO complaint would be inappropriate.

Finally, we address the Agency’s request for clarification regarding OFO’s Order in EEOC
Request No. 0720110008. We find that the word “potential” in OFO’s previous Order only
meant to include class members who fall within the definition of the class complaint contained
within this decision and we shall not use the word “potential” in the Order herein.

After reviewing 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(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0720110008 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER

The Agency is ORDERED to perform the following:

1. Notify class members of the accepted class claim within fifteen calendar days of the
date this decision becomes final, in accordance with 29 C.F.R. § 1614.204(e).

2. Forward a copy of the class complaint file and a copy of the notice to the Hearings Unit
of EEOC's Denver Field Office within thirty calendar days of the date this decision
becomes final. The Agency must request that an Administrative Judge be appointed to
hear the certified class claim, including any discovery that may be warranted, in
accordance with 29 C.F.R. § 1614.204(f).

3. The Agency is further directed to submit a report of compliance, as provided in the
statement entitled “Implementation of the Commission's Decision.” The report shall
include supporting documentation of the Agency's actions.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
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20013. 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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
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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

February 11, 2016
Date