U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 a/k/a Charley L., et al.1 Complainants, v. Edward Hugler, Acting Secretary, Department of Labor, Agency. Appeal No. 0120091988 Hearing No. 100-98-8066X Agency No. 805115 DECISION Complainant Charley L., acting as Class Agent, timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order fully implementing the decision of an EEOC Administrative Judge, after imposing sanctions, decertifying his class complaint alleging unlawful employment discrimination in violation of the Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time this matter began, Complainant Charley L. (hereinafter referred to as "Class Agent") worked for the Agency as a GS-13 Occupational Safety and Health Specialist in Chicago, Illinois. The Class Agent filed a class complaint alleging the Agency had been engaged in ongoing age discrimination when it failed to promote employees over the age of 45 to Occupational Safety and Health Specialist positions, as well as Occupational Safety and Health Manager positions, at the 13 and 14 grade levels. The parties eventually stipulated to the following definition of the class: Individuals over the age of 45 who applied for promotion to GS-018 Occupational Safety and Health Specialist and Occupational Safety and Health Manager positions at the GS-13 and GS-14 grade levels from 1994 to present. The complaint was assigned to an EEOC Administrative Judge (AJ) pursuant to the provisions of 29 C.F.R. § 1614.204. The case has a long procedural history which we shall not repeat here. Of relevance, by September 2005, the Commission had reversed the Agency's decision not to implement the AJ's decision to certify the class and had determined that certification was appropriate. See EEOC Appeal No. 07A40074 (May 5, 2005), request for reconsideration denied, EEOC Request No. 05A50938 (September 15, 2005). The complaint was remanded to the AJ for continued processing. The AJ authorized the parties to engage in discovery between February 2006 and July 2008. On August 18, 2008, the Agency filed its Motion to Dismiss Claims and to Decertify the Class, and a Motion for Summary Judgment. On September 3, 2008, the Class Agent, through his attorneys, filed his opposition to the Agency's motions. As part of his opposition to the Agency's motion for summary judgment, the Class Agent submitted evidence consisting of 15 affidavits from putative class members, as well as a report from the Class Expert.2 By Decision and Order dated January 28, 2009, the AJ, as a sanction, excluded consideration of the 15 affidavits and the Class Expert report from consideration in deciding the Agency's dispositive motions. The AJ indicated that he based the sanction against the class after finding that the Class Agent had failed to "reasonably supplement his discovery responses" to the Agency with the documents at issue. On February 3, 2009, rather than addressing the Agency's motion for summary judgment, the AJ entered a decision on the Agency's motions decertifying the class complaint and remanding four of the Class Agent's individual complaints, which had been subsumed into the class claim, to the Agency for processing. The instant appeal from the Class Agent followed. ANALYSIS AND FINDINGS In brief, the focus of the Class Agent's arguments on appeal are to challenge the AJ's decision to sanction the class by excluding evidence proffered after the close of discovery. The Class Agent argues that the AJ erred in choosing not to consider the 15 affidavits from putative class members and the expert report to justify granting the Agency's motion to decertify the class. The Commission's regulations afford broad authority to AJs for the conduct of hearings, including the authority to sanction a party for failure without good cause shown to fully comply with an order. See 29 C.F.R. § 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 7-8 (Aug. 5, 2015). However, a sanction must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. See Gray v. Department of Defense, EEOC Appeal No. 07A50030 (March 1, 2007); Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, would necessarily include the extent and nature of the non-compliance, to include the justification presented by the non-complying party; the prejudicial effect of the non-compliance on the opposing party; the consequences resulting from the delay in justice, if any; and, the effect on the integrity of the EEO process. Here, a review of the AJ's February 3, 2009 decision indicates that the sanction imposed by the AJ played a dispositive role in his decision to decertify the class. The AJ justified the sanction by concluding that the excluded evidence (15 affidavits and the report of the Class Expert) submitted for the first time by the Class Agent in his opposition to the Agency's motion to decertify the class and motion for summary judgment should have been produced earlier in response to the Agency's document production requests. The AJ concluded that the Class Agent's failure to do so was prejudicial to the Agency. By rejecting consideration of the excluded evidence, the AJ went on to determine that, following discovery, the evidence of record did not support a finding that the class still satisfied the numerosity, typicality and commonality requirements to maintain the class claim notwithstanding the prior certification decision. After careful consideration of the arguments of the parties and the record as a whole, we conclude that the AJ erred in imposing an overly harsh sanction in this case. In reaching this conclusion, we find particularly significant that the excluded affidavits and expert report were submitted in opposition to the Agency's motion for summary judgment. The record indicates that on July 22, 2008, the Class Agent did not have either the expert's report3 or the 15 affidavits from class members. The Agency filed its motion for summary judgment on August 18, 2008. A review of each of the 15 affidavits shows that they were obtained between August 18 and September 3, 2008. The expert report was also not provided to the Class Agent by the retained expert until this same period. The process for opposing summary judgment anticipates the actions followed here by the Class Agent. As the non-moving party, the Class Agent was entitled to submit affidavits not drafted during discovery in order to oppose the Agency's representation in its motion that there was no dispute as to any material fact and it was entitled to judgment as a matter of law. Upon receipt of the Class Agent's opposition to its motion for summary judgment, the Agency complained it was unfairly prejudiced because the 15 affidavits and the expert report had not been provided to it prior to the July 22, 2008 discovery cutoff date set by the AJ. However, we find that the Agency has not established that it suffered sufficient prejudice to justify the sanction imposed by the AJ. Any delay by the Class Agent was clearly mitigated by the fact that the Agency, unlike the Class Agent, always had complete access to all relevant personnel and merit promotion information and knew the identities of all the individuals who met the class definition and, as their employer, had their personnel files. Moreover, all the data upon which the Class Expert based her report came from the Agency's own databases. A more tailored approach to this situation, if the AJ believed it necessary, would have been to reopen a limited discovery period to allow the Agency to better explore the evidence at issue. With regard to the expert report, we also note that although the AJ carefully managed the discovery period, including its extensions, no specific motion was made or order entered creating a specific deadline for the identification of experts, deposition of experts or exchange of expert reports. The Agency knew the identity of the Class Expert at least as early as January 2008. See, footnote 3 of this decision. The AJ relied, in imposing the sanction, on his very general cutoff date for discovery. However, the Class Agent argues that the ability of his expert to produce her report was dependent on the Agency's production of the relevant data. The Class Agent asserts that much of the delay in producing the report is the result of the Agency's production of flawed or unusable data. The record shows that class counsel made numerous attempts, in motion after motion, to request the Agency produce purported missing data or data in a usable/readable format. The record shows that the Class Expert's report was served on the Agency on the same day it was received by the Class Agent's counsel. Again, had the AJ chosen to reopen the discovery period at this time, the Agency could have deposed the Class Expert. In sum, we conclude that the AJ abused his discretion here by imposing a sanction which, in essence, resulted in the dismissal of the class complaint. As already noted, a less harsh, more tailored option would have been to reopen discovery to allow the Agency the opportunity to depose the Class Experts and explore the other evidence submitted. We also find that the exclusion of the evidence subject to the sanction was critical to the AJ's decertification of the class. While the Agency has also has presented a lengthy argument about why the class should be decertified for lack of commonality and typicality, we find that these arguments have already been fully considered and rejected by this Commission in our decision to certify the class in the first place. See EEOC Appeal No. 07A40074, request for reconsideration denied, EEOC Request No. 05A50938. Accordingly, after setting aside the AJ's sanction, we find sufficient cause to vacate his decision decertifying the class. The class complaint remains certified and will be remanded for continued adjudication on its merits. CONCLUSION Accordingly, the Agency's final order adopting the AJ's decision to dismiss the class complaint by decertifying the class is VACATED. The class complaint remains certified and is REMANDED for further processing in accordance with the Order below. ORDER The Agency is directed to submit the complaint file and a copy of this decision to the Hearings Unit of the EEOC's Cleveland, Ohio District Office within thirty (30) calendar days from the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall conduct appropriate proceedings to adjudicate the merits of this certified class claim in accordance with 29 C.F.R. § 1614.204. 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 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 EEOC Hearing No. 410-2013-00382X 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 (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 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 23, 2017 __________________ Date C 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. 2 The Expert Report is not in the record. However, in the Class Agent's brief it is represented that the report found that, based on all the promotions where applicant data was maintained by the Agency, the non-selection of persons over the age of 45 for the positions in question could not have occurred by chance as the distributions were more than 2 standard deviations from the expected norms. 3 It is clear, however, that the Agency was aware of the Class Expert as there are documents in the file indicating the Agency sought to depose the expert in January 2008, well before the close of discovery. At that time, class counsel informed the Agency that it could depose the expert, but her report was not yet complete. The Agency chose not to pursue deposing the expert. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142620 2 0120091988