EEOC DOC 01A62246, 2006 WL 2992442 (E.E.O.C.)

 

E.E.O.C.

*1 Office of Federal Operations

 

CAROL A. CLOPTON, ET AL. COMPLAINANT,

v.

STEPHEN L. JOHNSON, ACTING ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, AGENCY.

 

APPEAL  01A62246

Agency No. 2000096R7

 

October 12, 2006

 

DECISION

 

Complainant (the class agent) filed a timely appeal with this Commission, from an agency final action dated February 16, 2006, denying her request for class certification and dismissing the class complaint for failure to satisfy the adequacy of representation requirement under 29 C.F.R. § 1614.204. The Commission accepts the appeal. 29 C.F.R. § 1614.405.

 

In Clopton, et al. v. Environmental Protection Agency, EEOC Appeal No. 01A2478 (September 14, 2004), request for reconsideration denied, EEOC Request No. 05A50178 (March 17, 2005), the Commission determined that complainant satisfied the 29 C.F.R. § 1614.204 requirements of numerosity, commonality, and typicality, and provisionally certified the captioned class action complaint. On remand, the Commission returned the case to the EEOC's St. Louis District Office, and ordered that the Administrative Judge (AJ) assigned to the case to give complainant an opportunity to satisfy the adequacy of representation requirement. The Commission's order further provided that after providing complainant with this opportunity, the AJ was to render a decision either certifying the class or rejecting the class complaint for failure to satisfy the adequacy of representation requirement.

 

In an Order dated August 1, 2005, the AJ indicated that she gave proper notice to the parties regarding the class agent's responsibility to submit evidence to establish adequacy of representation, and that both the class agent and the agency submitted timely responses. The AJ found that the class agent obtained the services of a licensed attorney, who attested that he previously worked for the agency, in its environmental enforcement litigation department, and that he also had three years of experience as the chief union steward, which included experience representing employees with discrimination complaints. The AJ further found that complainant submitted evidence that her attorney, from 1996, continued to represent employees in EEO proceedings before the Commission and in the Federal courts, and that his case load and legal resources were sufficient to allow him to adequately represent the class. In its Motion to deny class certification, the AJ found that the agency countered that the class agent's attorney was terminated from the agency for poor performance, and that his experience representing clients in discrimination claims is limited to five cases, and that he himself is the named complainant in these complaints. The AJ found that the agency also asserted that the attorney had no class action experience, and that he requested appointment of counsel in the discrimination complaint he currently had pending in Federal court, citing his limited financial means and a disability.

 

*2 In reviewing these submissions, the AJ found that the record demonstrated that the attorney had no class action experience, and cited to Commission cases denying class certification for this reason. Next, the AJ found that the record establishes that the attorney does not have the requisite professional competence required for class litigation, noting his termination from the agency for alleged poor performance, and also references an affidavit from a Department of Justice attorney confirming his performance problems while working there as well. Additionally, the AJ found that complainant failed to show that the attorney had sufficient financial resources to represent the class. Moreover, the AJ found that in responding to the agency's motion, the attorney revealed his lack of understanding of the complexities of class action litigation by making misstatements of law.

 

Based on the above determinations, the AJ gave the class agent an additional 60 days to either obtain a qualified attorney; or, alternatively, for the attorney to associate himself with another counsel or is sufficient experienced in class action litigation.

 

On January 17, 2006, the AJ issued an Order denying class certification. Therein, the AJ found that while the class agent found an attorney with discrimination complaint and class action litigation experience to act as a legal consultant, he subsequently withdrew from the case. Therefore, finding that because the class agent provided no other notifications pertaining to additional representation, the AJ concluded that the adequacy of representation requirement was not satisfied, and denied class certification. The agency adopted this determination in its final action.

 

On appeal, in pertinent part, the class agent's attorney denies the agency's characterization of his performance as poor. Complainant contends that prior to his involvement in various union and EEO matters, participating in a Congressional investigation of alleged discriminatory practices, and accommodation requests, his performance as a litigator was outstanding. Complainant further contends that his termination was retaliatory. As to the affidavit from the Department of Justice attorney attesting to his poor performance at that agency, complainant asserts that he had filed an EEO complaint against the affiant, and denies this description of his performance. Complainant notes that at one time he had received an outstanding rating from this same attorney.

 

In citing to Commission cases, and in particular Knopf v. Department of the Interior, EEOC Appeal No. 01871538 (1987), the attorney argues that the “essential requirement” is that the attorney demonstrate actual litigation experience, which he clearly satisfies. Specifically, the attorney asserts that he has twenty-five years of experience in administrative law and litigation, to include complex litigation involving multiple employees and large dollar amounts, and million dollar settlements. The attorney argues that he has twelve years of experience in EEO law, to include challenging the agency, and that he worked with the class agent to successfully defeat the agency's request for reconsideration (Clopton, et al. v. Environmental Protection Agency, EEOC Request No. 05A50178 (March 17, 2005). Moreover, although he disputes that the lack of class action experience is fatal, the attorney asserts that as of May 2006, he has been retained to work on a class action settlement involving one billion dollars. As to the finding that he does not have sufficient resources to litigate a class action complainant, the attorney asserts that it is the class agent who must satisfy this requirement, not the class representative.

 

*3 The attorney also asserts that the AJ engaged in ex parte communications with agency representatives, and that her actions caused the expert attorney who agreed to consult on this case to ultimately withdraw. The attorney avers that the AJ's bias is responsible for her decision finding that he cannot provide adequate representation.

 

In response, in pertinent part, the agency denies that the AJ engaged in ex parte communications, and repeats the arguments set forth in its Motion, as reflected in the AJ's decision, that complainant is not competent to represent the class in this matter.[FN1]

 

Analysis and Findings

In order to satisfy the adequacy of representation criterion, the class representative should have no conflicts with the class and should have sufficient legal training and experience to pursue the claim. See Byrd v. Department of Agriculture, EEOC Request No. 05900291 (May 30, 1990). This prerequisite requires that the representative will fairly and adequately protect the interests of the class. It is necessary that the class representative demonstrate sufficient ability to protect the interests of the class so that the claims of the class members do not fail for reasons other than their merits. The Commission has held that the lack of experience in class action litigation can be fatal to meeting the adequacy of representation requirement for certification, at least in those cases where the representative also lacks experience in EEO law. See Belser v. Department of the Army, EEOC Appeal No. 01A05565 (December 6, 2001) (noting “the complex nature of EEO class litigation,” and holding that the proffer of attorneys who lack experience in class litigation or EEO law as insufficient to establish adequacy of representation).

 

Here, although the class agent's attorney has filed individual EEO complaints against the agency, there does not appear to be a conflict of interest with the claims of the putative class. Moreover, the record confirms that the attorney, while employed by the agency, acquired many years of experience with complex federal sector litigation, involving large dollar amounts and multiple parties. The agency characterizes complainant's performance as poor, and cites it as the reason for his termination. However, the Commission is not persuaded by the agency's contention that complainant lacks competence as a litigator for this reason. Specifically, we find that the record reflects that his termination for alleged poor performance is challenged as retaliatory, and the subject of current litigation. Moreover, the record also reflects that the attorney received many awards and “Outstanding” evaluations while employed by the agency, which belies the agency's claim that he is an incompetent litigator. Likewise, we find that the statement procured by the agency from the affiant at the Department of Justice must be viewed as given by an official who complainant named in an EEO complaint. Similarly, we are unpersuaded by the agency's argument that the attorney's EEO experience in representing himself in EEO complaints should be disregarded. Self-representation requires the same level of knowledge of the law and the complaint process as does the representation of a client. Therefore, we find that the class agent's attorney has demonstrated that he has adequate experience and competence as a litigator, and adequate knowledge and experience of the EEO law and complaint process.

 

*4 Furthermore, while the class agent's attorney has not been able to demonstrate that he has experience representing a class of complainants in an EEO class action complaint, we find that he successfully represented the instant class when the agency challenged the Commission's decision to provisionally certify the class. Clopton, et al. v. Environmental Protection Agency, EEOC Request No. 05A50178 (March 17, 2005). Moreover, we note that the attorney attests that as of May 2006, he has been retained as counsel on a billion dollar private sector class complaint.

 

Therefore, we find that because the class agent's attorney demonstrates experience in conducting complex federal sector litigation, knowledge and experience of EEO complaint process, and has limited, but relevant and successful, experience with EEO class action complaints, as evidenced by his successful representation of the instant class in the above referenced request for reconsideration, we find that the adequacy of representation requirement is satisfied. In reaching this conclusion, we also take into account the high level of legal advocacy reflected in the attorney's submissions to the Commission on appeal, and the fact that he has once again successfully represented the class before the Commission.

 

Conclusion

 

For the reasons stated above, the Commission REVERSES the agency's dismissal of the class complaint and REMANDS the complaint for processing as ORDERED below.

 

ORDER

 

1. The agency is ORDERED to forward the class complaint file, including a copy of the class complaint and the Commission's decision on class certification, to the EEOC's St. Louis District Office, with a cover letter requesting that the class complaint be assigned to an Administrative Judge for discovery proceedings and a hearing. The agency's cover letter shall inform the St. Louis District Office that the Commission's Order requires the class complaint, as certified by the Commission, to be assigned as soon as possible to an Administrative Judge. The request letter shall also inform the St. Louis District Office that the Administrative Judge shall begin the discovery process under 29 C.F.R. § 1614.204(f) within ten (10 calendar days of the date the case is assigned to the new Administrative Judge. The agency shall complete these actions within ten (10) calendar days of the date this decision becomes final.

2. The agency is ORDERED to notify potential class members of the Commission's acceptance of the class complaint in accordance with 29 C.F.R. § 1614.204(e), within fifteen (15) calendar days of the date this decision becomes final. The notice shall contain the law firm's/attorney's name, mailing address, e-mail address, telephone number, and facsimile number for the attorney who is representing the class.

3. The agency shall send to the Compliance Officer referenced below, and to the attorney who is representing the class, copies of the agency's class complaint notifications to class members and a copy of the letter forwarding the complaint file to the EEOC's St. Louis district Office, within fifteen (15) calendar days of the date this decision becomes final.

 

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

 

*5 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)(Supp. V 1993). 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 (M0900)

 

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 tend 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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.

 

*6 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 (R0900)

 

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 (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

 

FN1. The agency also argues that complainant's appeal statement should be struck because it was purportedly filed late. However, in this case, the Commission exercises its discretion to consider all statements submitted by both parties on appeal. Specifically, we find that both parties had notice of the statements submitted on appeal, and an opportunity to respond, such that there is no unfair advantage to either party by considering all of the statement submitted on appeal.

 

 EEOC DOC 01A62246, 2006 WL 2992442 (E.E.O.C.)

END OF DOCUMENT