Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (U.S. Marshals Service), Agency. Request No. 0520120575 Appeal No. 0120073003 Hearing No. 570-2006-00483X Agency No. M946376 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested reconsideration of the decision in Complainant v. Department of Justice, EEOC Appeal No. 0120073003 (July 11, 2012). 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). For the reasons that follow, the Agency's request is DENIED. The Commission reopens the case on its own motion to MODIFY the previous decision. The Class Agent, a former Criminal Investigator, GS-1811-13, with the U.S. Marshal's Service (USMS) filed a complaint on or about July 12, 1994, alleging discrimination on the bases of race (African-American), and reprisal for prior EEO activity on behalf of a "class of employees, former employees, applicants and/or potential employees." Specifically, the Class Agent alleged that: (1) the USMS has not met its Affirmative Action obligation required by section 501 of Title 5 of the Rehabilitation Act of 1973;1 (2) the USMS is not recruiting African-American employees at a rate comparable to the recruitment of White employees; (3) the penalties for infractions applied to African-American employees in USMS disciplinary proceedings are frequently greater and more severe than those applied to White employees; (4) the USMS purposely delays processing of EEO complaints filed by African-American employees; and (5) White USMS employees receive preferential treatment with respect to special assignments. Attached and/or referenced in both his EEO Counselor's Report and formal class complaint was the "Ad Hoc Committee on Personnel Matters Report" (the Committee Report) dated August 1, 1992, and four formal individual complaints he had previously filed. In his class complaint, the Class Agent (who was not represented at the time) stated that the commonality required in the class complaint was established through his prior individual EEO complaints, as well as the Committee Report. The complaint was forwarded to the Commission's Washington Field Office for a determination as to whether it met the requirements for class certification. The defined class was then clarified to include African-American individuals who were subjected to discrimination in (1) promotions, (2) training, (3) assignments; (4) discipline, (5) recruitment, (6) hiring, and (7) delayed processing of EEO complaints. After requesting additional clarifying information from the class on several occasions, on March 5, 1996, an Administrative Judge (AJ) remanded the case to the Agency for dismissal because she did not find adequate and specific information in the complaint. On April 12, 1996, the Agency dismissed the class complaint on the ground that it lacked sufficiency and detail. The Class Agent filed an appeal with the Commission. The Commission mistakenly closed the appeal due to confusion surrounding a request for withdrawal of a different appeal filed by the Class Agent. By decision dated May 26, 2006, the Commission reopened the case and found that, in fact, there was sufficient information in the record to determine whether the prerequisites for class certification had been met. See Fogg v. Dept. of Justice, EEOC Request No. 05A41062 (May 26, 2006). The Commission remanded the case to the Washington Field Office for a determination on class certification. On March 17, 2007, the AJ assigned to the case dismissed the class complaint, finding that the Class Agent failed to establish the prerequisites for class certification because he failed to produce sufficient examples establishing how he and other African-American individuals were subjected to discrimination. The Class Agent appealed to the Commission again, whereupon the Commission granted class certification. See Fogg v. Dept. of Justice, EEOC Appeal No. 0120073003 (July 11, 2012). The appellate decision relied on the Class Agent's declaration dated October 17, 2004, wherein he averred that the Agency had a "practice of giving non-African-American employees preferential treatment with respect to the assignment of law enforcement positions." The appellate decision also found that the Class Agent alleged "that this practice had the affect of subjecting him to disparate terms and conditions of employment, including but not limited to work assignments and opportunities to advance within the Agency." Further, the appellate decision noted that, although the Class Agent had referenced prior individual complaints in his formal class complaint, they were absent from the record. The appellate decision relied on other evidence in granting certification. Specifically, the Commission therein noted that the record contained declarations from 22 African-American USMS employees detailing allegations and incidents of discrimination over the course of their employment, as well as a copy of the Committee Report; it was not clear whether the AJ had had the benefit of the Committee Report in the record. After reviewing some of the declarations which detailed years' long allegations of discrimination, the Commission found sufficient evidence to support the commonality requirement. The Commission likewise found typicality, numerosity, and adequacy of representation. The Commission It remanded the complaint to the Agency and ordered that a copy be forwarded to the hearings unit at the Washington Field Office. Agency's Brief in Support of its Request In its Request for Reconsideration, the Agency raises several arguments. Relying primarily on the U.S. Supreme Court case Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011), the Agency asserts that the class complaint does not survive certification because it lacks commonality, required under Rule 23(a) of the Federal Rules of Civil Procedure. The Agency asserts that Rule 23 is often relied upon by the Commission. The Agency also argues that the Class Agent lacks standing to bring the class complaint, and that his claims are not typical of the class. Specifically, the Agency argues that the Class Agent failed to cite any personnel actions that he was subjected to within the 45-day period prior to contacting an EEO Counselor. Although the Class Agent was a successful litigant in his individual complaint, which was brought to U.S. District Court, the Agency maintains that, in the class complaint, the Class Agent failed to cite any incident where he was actually denied recruitment, disciplined, denied assignments, or denied promotions. The Agency further maintains that the class's declarations neither establish typicality, commonality, nor numerosity. In support, the Agency submits, for the first time, a declaration by the Chief of its Human Resources Division, wherein she details the personnel history of each of the declarants, and asserts their claims are not typical of the class. Moreover, the Agency argues that the prior decision conflated the denial of assignments into a claim that the class was denied promotions. The Agency notes that the Class Agent did not allege he was denied a promotion during the time period leading up to his class complaint. The Agency asserts that the class-certification order is vague and does not provide sufficient guidance regarding the class claims specified. Finally, it maintains that its ability to defend this class has been unfairly prejudiced by the Commission's delay in adjudicating this complaint. Class Agent's Brief in Response to the Agency's Request The Class Agent states, through counsel, that the Agency improperly submitted, for the first time on reconsideration, a declaration from its Human Resources Division Chief, as it represents newly presented material which was previously available. The Class Agent distinguishes Wal-Mart from the present class based on its size, which is not similar in scope to Wal-Mart. Further distinguishing itself from Wal-Mart, the Class Agent argues that the present claim is one where "there is a single decision maker - the USMS director responsible for promotions, lateral assignments and certain awards." The Class Agent asserts that further evidence of a "common mode of exercising discretion" is found in the Committee Report and supporting declarations, which contain evidence of policies that allow for the cancellation of vacancy announcements, often used to eliminate African-Americans, as well as centralized control of promotional decisions; assignments made without preference for seniority; and policies which allegedly have a disparate impact on African-Americans in assignments, and awards. The Class Agent argues that the Committee Report and supporting declarations provide evidence that the Merit Promotion Board and Assessment Center Assessors, who were responsible for selection of law enforcement positions, were susceptible to discrimination, as was the U.S Marshall's Training Academy in Glynco, Georgia. The Class Agent also contends that such a "systemic deficiency" as the one found at the USMS, can be the "glue" holding together class wide allegations. See Conner B. v. Patrick, 278 F.R.D. 30 (D. Mass. 2011)(systemic deficiencies in state's Department of Children and Families, and not the individual case workers discretion, was the cause of injuries and thus satisfied class certification requirements). Even if the policies were, in fact, delegated to local decision makers, the Class Agent suggests that the incremental effect of those policies can cause a disparate impact on African-Americans, which could be adjudicated on a class wide basis. See McReynolds v. Merrill Lynch, 672 F.3d 482, 488 (7th Cir. 2012)(post-Wal-Mart certification granted where causal effect of a company-wide policy that delegated discretion to brokers to form teams could cause a disparate impact on African-Americans and was appropriate for class certification). The Class Agent also responds to the Agency's arguments regarding his standing to serve as Class Agent by referring to the four individual complaints cited in the class complaint, and suggests that the class complaint relates back to those individual complaints. These individual complaints referred to allegations that the Class Agent was passed over for promotions and assignments, as well as subjected to disciplinary action and delays in EEO complaint processing. Further, the Class Agent acknowledges that, even if there are issues with the Class Agent serving, there are other class members who could be substituted. The Class Agent argues that there is sufficient evidence in the Committee Report, and supporting declarations to support commonality, typicality, and numerosity. Finally, the Class Agent argues that any prejudice due to the passage of time during this litigation will impact both sides, and would not unduly prejudice the Agency. ANALYSIS AND FINDINGS After reviewing the previous decision and the entire record, the Commission finds that the Agency's 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. We find that the prior decision did not clearly err when it found that the "commonality" requirement of certification was met, notwithstanding the application of the Supreme Court decision in Wal-Mart. Although the Agency asserts that there is no specific policy or practice which ties all of the class allegations together, we disagree, and find that the prior decision's finding was not clearly erroneous. In Wal-Mart, the Supreme Court considered whether a class of 1.5 million current and former female employees of Wal-Mart stores across the country met the requirements of class certification under F.R.C.P. Rule 23. The plaintiffs alleged that Wal-Mart's local managers exercised pay and promotion discretion in a way that unlawfully disparately impacted women, and that the company's failure to limit that discretion amounted to disparate treatment. The Court found that the allegations were not sufficient to satisfy the commonality requirement because there was no "glue" holding together all the reasons for those employment decisions. Wal-Mart, 131 S. Ct. 2551. The Court suggested two ways that plaintiffs could establish commonality: (1) the existence of a biased testing procedure; or (2) "significant proof that an employer operated under a general policy of discrimination ... [that] manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision making processes." Wal-Mart, 131 S.Ct at 2553 (quoting, Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, n15 (1982). The Agency asserts that Wal-Mart forecloses this class because the class has not identified a specific policy or practice which holds the class allegations together. However, we find that the "glue" holding recruitment, promotions, assignment, and training claims together is found in the formal complaint, the Committee Report, and the anecdotal evidence contained in the declarations, as well as the evidence of an Agency-wide policy of discrimination. The Class Agent alleges, and the Committee Report describes, that the Merit Promotion Panel/Career Board and Assessment Center Assessors have centralized control over the promotion of some law enforcement personnel positions. See Class Brief at Exhibit 4. The class asserts that certain Law Enforcement or "operational" positions are selected by the Director of the USMS and the Career Board.2 The Agency concedes this in its brief in support of its Request for Reconsideration. Other law enforcement positions are chosen by high-level officials. Therefore, because the Class Agent identified specific employment practices under the direction of top management, the class presents the "common direction" of promotions to law enforcement or operational positions required under Wal-Mart. See Ellis v. Costco Wholesale Corp, 285 F.R.D. 492 (September 25, 2012)(distinguishing Wal-Mart where top management was not directing employment policies; only discretion was delegated which was tantamount to an "absence of a policy"). Even if, after discovery, it becomes apparent that promotions, recruitment, assignments, and training involved subjective discretional decision-making by high-level decision-makers, Wal-Mart "did not set out a per se rule against class certification" where subjective decision-making or discretion is alleged. See Scott v. Dollar Tree Stores, 733 F.3d 105, 113 (4th Cir. 2013)(district court erred when it failed to consider whether discretion was exercised in common direction and by higher-level officials when it denied leave to amend a class complaint). "Rather, where subjective discretion is involved, Wal-Mart directs courts to examine whether 'all managers [ ] exercise discretion in a common way with [ ] some common direction.'" Id., quoting Wal-Mart, 131 S.Ct. at 2555. It follows that, if it is apparent that more than one company-wide policy is also alleged, courts must also consider it. Dollar Tree, 733 F.3d at 114. Thus, allegations of both discretion as well as the existence of a company-wide policy of discrimination may still satisfy the commonality requirement for certification. See Dollar Tree at 114-115; McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 489 (7th Cir. 2012)(class certified when managerial discretion was "influenced by [ ] company-wide policies"). A review of the Committee Report, attached to the class complaint, provides evidence for such a policy. It was not clear from the record whether the AJ had access to the Committee Report, which supports the Class Agent's theory of Agency-wide discrimination. Specifically, the Committee Report discusses the award of noncompetitive promotions, favoritism in the area of hiring, promotions and assignments, as well as the uniform belief on the part of a large segment of the service that "a good old boy network" or buddy system existed. Further evidence taken from the Committee Report establishes that there was a lack of a minority presence in Assessment Centers or Merit Promotion Board who were responsible for promotions to Supervisory and Chief Deputy U.S.Marshalls. This evidence could support the kind of "significant proof that an employer operated under a general policy of discrimination." Wal-Mart, 131 S.Ct. at 2551. The manageable size of this class also serves to distinguish this case from Wal-Mart. The purported class in Wal-Mart consisted of 1.5 million women at thousands of locations nationwide, which is not the case here. The instant class would involve a small fraction of the number in Wal-Mart, at less than one hundred districts. This is clearly not the case as in Wal-Mart, "one of the most expansive class actions ever." 131 S. Ct at 2547-52. "The Supreme Court suggested (when not explicitly stating) that the sheer size of the [Wal-Mart] class and the vast number and diffusion of challenged employment decisions was key to the commonality decision." Chen-Oster v. Goldman, Sachs and Co., 877 F.Supp. 2d 113, 119 (S.D. N.Y. 2012)(distinguishing Wal-Mart based on scale). The anecdotal evidence in the record is also sufficient in this case to suggest that there was a policy of discrimination at the Agency. We note that here, unlike in federal courts, the class does not have the benefit of pre-certification discovery, such as comprehensive statistical evidence. See Hines et al. v. Dept. of the Air Force, EEOC Request No. 05940917 (Jan. 29, 1996). During discovery in this case, the class could have access to information which, at this point, is unavailable to the class. We do note that similar supporting evidence is absent from the record with respect to disciplinary actions and EEO complaint processing. We cannot find evidence that would point to a centralized decision-maker with respect to discipline. Further, we have previously declined to certify class actions based on dissatisfaction with EEO complaint processing. See e.g. Hines, EEOC Appeal No. 0120070379; Blue, et. al. v. Dept. of Defense, EEOC Appeal No. 01A30926 (Jan. 5, 2004); Ponder v. Social Security Admin., EEOC Appeal No. 01A04411 (May 15, 2003; Mormon v. Dept. of the Air Force, EEOC Appeal No. 01996146 (Jan. 9, 2002). However, we do find, on our own motion, that some modification of the class is necessary. Specifically, we find that the class should be limited to African-Americans who served in law enforcement or operational positions and were subjected to discrimination in recruitment, training, assignments, and promotional opportunities, as there is evidence of both centralized control over these promotional decisions, as well as evidence of an Agency-wide discriminatory policy. We also find that there is an absence of evidence regarding centralized control or a discriminatory policy with respect to discipline and EEO complaint processing, and find that the class should be modified as such. Finally, we find that a new Class Agent should be substituted, who has claims more typical of the class. The prior decision noted that a Motion to Amend to add two new class members had been filed and would be properly heard by the AJ on remand. We also find that there is a need for a more comprehensive definition, including timeframes, of the class, and modify our decision for that reason. Specifically, on remand, the AJ will limit the class to recruitment, promotions, training, and assignments of law enforcement or operational personnel, and define the class with a relevant date range. Because the Class Agent was not represented at the time of the filing of the formal complaint, we find the formal complaint itself was lacking in specifics. However, properly defined, the class may proceed. The Agency did not argue that the class lacks adequate representation. The record reflects that the class is adequately represented in this case. The decision in EEOC Appeal No. 0120073003, as modified above, 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 of the Commission, set forth below. ORDER (D0610) The Agency is ORDERED to take the following remedial action: 1. Forward a copy of the class complaint file and a copy of the notice to the Hearings Unit of the Washington Field Office within thirty (30) calendar days of the date this decision becomes final. The Agency shall request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with 29 CF.R, § 1614.204(f). The AJ shall respond to the class's Motion to Amend to add a new class agent, and define the class in accordance with this decision. 2. Notify potential class members of the accepted class within fifteen (15) calendar days of the date this decision becomes final, in accordance with 29 CF.R. § 1614.204(e). 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 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Class Agent. If the Agency does not comply with the Commission's order, the Class Agent may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Class Agent 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 Class Agent 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 Class Agent 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. COMPLAINAN'TS 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, Director Office of Federal Operations 11-17-2015 __________________ Date 1 The Rehabilitation claim was subsequently withdrawn. 2 The Agency asserts that the class failed to raise a denial of promotion claim in its formal claim complaint. However, we find that the Class Agent alleged in his declaration that the Agency gave preferential treatment to non-African-Americans in the "assignment of law enforcement positions." We read this to include the denial of promotions. Furthermore, he alleged that assignments and training were assigned discriminately, which could be part of a larger promotional system. See Fitzgerald v. Dept. of Defense, EEOC Appeal No. 0720090003 (Mar. 26, 2010)(class certified based on lack of promotional opportunities created in part, by performance review system). We note tthat he Class Agent was not represented by counsel at the original drafting of the class complaint, and that he specifically referenced his individual complaints in the class complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 05-2012-0575 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520120575