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U.S. Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036

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. 01A03944 (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).

IMPLENTATION 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:

SIGNED
Carlton M. Haden, Director
Office of Federal Operations

November 24, 2003
Date

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