01A24322
12-18-2002
Walter T. Flournoy, et al., Class Agent/Petitioner, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration (NASA), Agency.
Walter T. Flournoy, et al. v. National Aeronautics and Space
Administration
01A24322
December 18, 2002
.
Walter T. Flournoy, et al.,
Class Agent/Petitioner,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration (NASA),
Agency.
Appeal No. 01A24322
Agency No. NCN-92-GSFC-F064
Hearing No. 120-A2-1267X
DECISION
The class agent timely appeals the July 10, 2002, decision of an Equal
Employment Opportunity Commission Administrative Judge denying his
petition to vacate an April 24, 2002, resolution (settlement) between
Walter T. Flournoy and all others similarly situated (the class) and the
agency (collectively: the parties). This appeal is accepted pursuant
to 29 C.F.R. � 1614.405; 29 C.F.R. � 1614.204; and Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
as revised, November 9, 1999, 8-09; 8-10. For the reasons that follow,
we affirm the Administrative Judge's decision to deny the class agent's
petition to vacate the settlement.
BACKGROUND
The history of the underlying class action is well documented.<1>
The class agent, an African-American engineer employed by the agency's
Goddard Space Flight Center, filed a formal class EEO complaint against
the agency on April 19, 1993, alleging that the Goddard Space Flight
Center failed to promote African-American employees in scientific and/or
engineering non-managerial positions at the GS-13 and GS-14 levels in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
On March 3, 1998, the Commission provisionally certified the class.
See Walter Flournoy v. NASA, EEOC Appeal No. 01966586 (March 3, 1998)
(request to reopen denied EEOC Request No. 05980647 (October 19, 2000)).
Rather than litigating, the parties agreed to resolve the complaint by
settlement agreement. In accordance with the Commission's regulations,
the parties, including the class agent, signed a proposed resolution and
submitted the proposed resolution to all class members and the presiding
Administrative Judge. See 29 C.F.R. � 1614.204(g).
On July 8, 2002, the Administrative Judge conducted a �fairness hearing�
in connection with her review of the proposed resolution. While all
class members were invited to give written and oral testimony at the
�fairness hearing,� only the class agent testified against acceptance of
the proposed resolution. At the fairness hearing and through written
submissions, the class agent petitioned the Administrative Judge
to vacate the settlement on the grounds that he would not receive
adequate individual relief under the settlement. On July 10, 2002,
the Administrative Judge issued a written decision concluding that
the resolution was fair, adequate, and reasonable to the class as a
whole within the meaning of 29 C.F.R. � 1614.204(g)(4). In so doing,
the Administrative Judge rejected the class agent's petition to vacate
the settlement. This appeal followed. On appeal, the class agent
renewed his argument that he would not receive adequate relief under
the settlement and also alleges that he, as class agent, was coerced
into signing the agreement.
ANALYSIS AND FINDINGS
Petition to vacate
We review under an abuse of discretion standard an Administrative Judge's
decision to approve a class action settlement. See Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); Bailey v. Great Lakes Canning,
Inc., 908 F.2d 38, 42 (6th Cir. 1990); Jones v. Nuclear Pharmacy, Inc.,
741 F.2d 322, 324 (10th Cir. 1984); Young v. Katz, 447 F.2d 431, 432 (5th
Cir.1971). In adopting the abuse of discretion standard for reviewing
an Administrative Judge's approval of a class action settlement under 29
C.F.R. � 1614.204, we recognize that �the decision to approve or reject a
settlement is committed to the sound discretion of the trial judge because
[s/]he is exposed to the litigants, and their strategies, positions and
proof.� Hanlon v. Chrysler Corp. 150 F.3d 1011, 1026 (9th Cir. 1998)
(citations omitted).
Before turning specifically to the class agent's contentions, we are
required to determine whether a class exists.<2> Amchem Products,
Inc. v. Windsor, 521 U.S. 591, 620; n. 16. (1997)(where a settlement is
proposed before a class is certified the issue of class certification
warrants more, not less caution). Based upon our previous, provisional
grant of class certification and in consideration of the absence of
any objection to the certification of the class for purposes of this
settlement, we now certify the class as identified by the parties' April
24, 2002, resolution. Next, we address the class agent's argument that
his individual relief under the agreement is inadequate.
In the class agent's submission on appeal he argues that the resolution
should be vacated because of �the unfair and penal consequences of the
application of [his] promotion award . . .�. We have reviewed pertinent
portions of the resolution. Under the agreement the class agent will
receive the option of accepting an automatic one-grade promotion, or,
if he chooses to retire, a two-grade promotion. If the class agent
remains at NASA Goddard, he would be the only class member to receive
an automatic promotion. This promotion would count against a minimum
of ten (10) promotions to be awarded to current employee class members.
The class agent objects to the fairness of the resolution solely on the
ground that he believes that he should be granted an option to stay at
NASA Goddard and receive a two-grade promotion. The class agent makes no
argument that the settlement is unfair, inadequate, or unreasonable to the
class as a whole as specified in 29 C.F.R. � 1614.204(g)(4). Accordingly,
we find that the Administrative Judge did not abuse her discretion in
denying the class agent's petition to vacate the settlement agreement.<3>
Coercion
We turn now to the class agent's argument that the resolution is
void because it was obtained by coercion.<4> The Commission has
consistently held that settlement agreements are contracts. See Eggleston
v. Department of Veterans Affairs, EEOC Request No. 05900795 (August
23, 1990). The Commission will find a contract void if coercion,
misrepresentation, or mistake occurred during the formation of the
contract, making assent to the agreement impossible. See Shuman
v. Department of the Navy, EEOC Request No. 05900744 (July 20, 1990).
This Commission examines claims of fraud, coercion, and duress with
much scrutiny. The party raising the defense of coercion must show
that there was an improper threat of sufficient gravity to induce assent
to the agreement and that the assent was in fact induced by the threat.
See Lenihan v. Department of the Navy, EEOC Request No. 05960605 (December
5, 1995).
The class agent alleges that he was coerced by class counsel's warning
that he could be replaced as class agent. Upon our review of the record,
we find that the class agent has failed to establish that the comments
allegedly made by class counsel constitute an �improper threat.� In
fact, class counsel's comments appear appropriate if she believed that
the class agent was giving overriding consideration to his personal
interests.<5> Our regulations provide that the class agent must
fairly and adequately protect the interests of the class as a whole. 29
C.F.R. � 1614.204(a)(2)(iv). The Commission's regulations also give the
Administrative Judge the authority to replace an original class agent
if the proposed resolution sought is not fair to the class as a whole.
29 C.F.R. � 1614.204(g)(4) (emphasis added). See also Thomas v. Albright,
139 F.3d 227, 232 (D.C. Cir. 1998) (claim that individual dissenters
are entitled to more relief is not, by itself, sufficient to reject
the overall fairness of the settlement even where it is the class agent
who objects). Since we find no �improper threat� within the meaning of
our precedent, we conclude that the class agent failed to establish that
he was coerced into signing the settlement.
CONCLUSION
The Commission denies the class agent's request to void the parties'
April 24, 2002, settlement. If there is no request for reconsideration
filed, the parties' April 24, 2002, settlement agreement shall bind
all members of the class as specified in 29 C.F.R. � 1614.204(g)(4).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the class agent/petitioner 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.
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).
CLASS AGENT/PETITIONER'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
December 18, 2002
__________________
Date
1See, Walter T. Flournoy v. NASA, EEOC Appeal No. 01930989 (July 9, 1993)
(request to reopen denied EEOC Request No. 05931042 (March 11, 1994));
Walter T. Flournoy v. NASA, EEOC Appeal No. 01941801 (November 17, 1994);
Walter T. Flournoy v. NASA, EEOC Appeal No. 01966586 (March 3, 1998)
(request to reopen denied EEOC Request No. 05980647 (October 19, 2000)).
2 As previously indicated, on March 3, 1998, the Commission
provisionally certified the class. See Walter Flournoy v. NASA, EEOC
Appeal No. 01966586 (March 3, 1998) (request to reopen denied EEOC
Request No. 05980647 (October 19, 2000)).
3 Notably, no other class member objected to the settlement.
Class counsel, as the legal representative to the class, and the agency
representative, have submitted briefs urging the Commission to affirm the
Administrative Judge's finding that the resolution was fair, adequate,
and reasonable to the class as a whole.
4 The class agent also alleges that the settlement should be invalidated
because of fraud and duress. However, we find no evidence offered in
support of these contentions.
5 Class counsel ultimately owes her fiduciary responsibility to the
class as a whole and is therefore not bound by the views of the class
agent regarding any settlement. See In re GMC Pick-Up Truck Fuel Tank
Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir. 1995).