US Marshals Win EEOC Class Cert. On Race Bias Claims

Posted July 19th, 2012.

As It Appeared On

By Sindhu Sundar

Law360, New York (July 19, 2012, 10:23 PM ET) — The U.S. Equal Employment Opportunity Commission last week revived class claims by a former U.S. Marshals Service criminal investigator accusing the law enforcement agency of systematically discriminating against blacks and certified a sweeping class of black marshals over the past 18 years.

The commission’s July 11 ruling certifies a class of black U.S. marshals from July 1994, when former investigator Matthew F. Fogg first filed his class claims, to the present, marking one of the longest ever certified classes in a Title VII complaint in the U.S., according to David Sanford, a partner at Sanford Wittels & Heisler LLP who represents Fogg.

“It’s a very important case, because there are thousands of AA employees current and former at the Marshals Service who have awaited justice,” Sanford told Law360 on Thursday. “Sometimes justice is slow, but the judges get it right, and in this case, the judge got it right.”

The ruling finds that an administrative judge’s April 2007 ruling tossing Fogg’s class claims wrongly had determined that his claims had not met the commonality and typicality requirements, according to the order.

The commission said Fogg had submitted enough examples in the form of declarations from 22 other black Marshals Service employees who had detailed their claims of discrimination, according to the order.

“We find that this evidence is sufficient to meet the commonality requirement,” the EEOC said. “Additionally, we find that this evidence is sufficient to establish that the practices at issue affect the whole class and not only a few employees, and sufficiently alleges a claim of across-the-board discrimination.”

In a separate suit in Washington federal court in 1994, Fogg had won a $4 million federal jury award after a monthlong trial, according to Sanford.

By that time, his class claims had been dismissed by the EEOC after an administrative judge concluded in April 2007 that Fogg’s complaint had failed to satisfy the procedural requirements for class certification, stating that his complaint had not shown specific examples of how he and other black employees were discriminated against, according to the order.

Fogg appealed that decision that year, according to Sanford, and the July 11 decision by the EEOC to grant class certification finally reverses the agency’s April 2007 decision, according to the order.

Fogg’s 1994 complaint had claimed that the Marshals Service was recruiting white employees at a much faster pace than black employees and that black employees received disproportionately harsher punishments than their white counterparts for similar infractions.

The complaint also claimed the service intentionally delayed processing complaints by black employees and that white employees often received preferential treatment in getting special assignments, according to the EEOC’s order.

The EEOC class claims are expected to proceed to trial in 2013, Sanford said.

The case is Matthew F. Fogg v. Eric H. Holder Jr., appeal no. 0120073003, before the U.S. Equal Employment Opportunity Commission.

–Editing by Richard McVay.

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