EEOC Certifies Class In US Marshals Race Bias Saga

Posted February 27th, 2017.

As It Appeared On
law360

By Braden Campbell

Law360, New York (February 27, 2017, 8:13 PM EST) — A judge with the U.S. Equal Employment Opportunity Commission on Friday certified a class of hundreds of black workers in a long-running suit alleging the U.S. Marshals Service systematically discriminates against black employees.

EEOC Administrative Judge Sharon E. Debbage Alexander certified a class of all current and former black deputy U.S. marshals and detention enforcement officers who were subject to the agency’s promotion, hiring and recruitment policies between January 1994 and now.

The judge also set procedural deadlines, signaling to the class they may finally have their case heard nearly 23 years after it was filed, the workers’ attorney Thomas Henderson of Sanford Heisler LLP told Law360 on Monday.

“We finally now have a class certified and a discovery schedule, and we’re going to go ahead and prosecute this charge and hopefully get a hearing and get a decision,” Henderson said. “This is a hugely delayed process. We’re very excited to be able to press these claims now and get them decided and hopefully get relief for the class.”

Judge Alexander also finalized the class agent roster, keeping plaintiff Matthew Fogg, who filed the initial complaint in 1994, in the role and adding fellow black agency employees Antonio Gause, Regina Holsey, Thomas Hedgepath, Charles Fonseca, Ivan Baptiste, Tracey Bryce and Theodore Riley. These class agents, some of whom currently work at the Marshals Service, were added because Fogg does not have standing to seek an injunction to stop the agency’s allegedly discriminatory personnel practices as a retiree.

Fogg, then a deputy U.S. marshal, filed an administrative class complaint with the EEOC in July 1994 alleging the agency was biased against black workers. Though a D.C. federal court would side with Fogg on individual claims against the Marshals Service in 1999, an EEOC administrative judge dismissed his class claims in 1996, and the EEOC Office of Federal Enforcement mistakenly closed his subsequent appeal, according to Fogg’s amended complaint.

Sanford Heisler has been involved in the case since 2004, when Fogg contacted the firm for help getting his case revived. The case was reopened in May 2006 only to be dismissed again in April 2007 on findings that Fogg failed to satisfy various procedural requirements for class certification. The EEOC reversed that decision in July 2012, and the Marshals Service moved to decertify the class in a motion for reconsideration.

The EEOC denied the agency’s motion in November 2015, though it ordered the class to be amended, finding that Fogg did not have standing to bring the entire suit. The next year, Judge Alexander ordered the parties to brief the court on the appropriate class range and to propose a discovery schedule. The judge also allowed Fogg to move to amend his complaint.

Though he will not have an exact figure until discovery ends, Henderson said, he estimates the class comprises about 400 or 500 African-American current and former workers affected by the Marshal Service’s allegedly discriminatory practices.

“The statistical evidence shows there are disparities there — that’s the biggest story,” Henderson said. “There has been a long history of claims of discrimination in promotion at the Marshal Service, they have consistently avoided and evaded having to answer for those disparities, and we are happy now that we have an opportunity to prove them.”

A representative for the U.S. Marshal Service was not available for comment Monday.

The workers are represented by Thomas J. Henderson, David Sanford and Stefanie Roemer of Sanford Heisler LLP.

The U.S. Marshal Service is represented by Joe Lazar of the U.S. Department of Justice.

The case is Fogg et al. v. Sessions et al., case number 570-2016-00501X, in the Washington Field Office of the U.S. Equal Employment Opportunity Commission.

–Additional reporting by Kevin Penton and Sindhu Sundar. Editing by Edrienne Su.

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