Matthew Fogg V U.S. Department of Justice, Jeff Sessions

U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington Field Office 131 M Street, N.E.
Suite 4NW02F
Washington, DC 20507
(202) 419-0713
TTY (202) 419-0702
FAX (202) 653-6053
1-800-669-4000
) EEOC No. 570-2016-00501X

) Agency No. M-94-6376
Matthew Fogg, et al )
Class Agents, )
)
v. )
)
Jeff B. Sessions, )
Attorney General, )
Department of Justice, )
Agency. )
)
)
)
) Date: February 24, 2017
ORDER DEFINING CLASS, GRANTING COMPLAINANTS MOTION TO AMEND

CLASS CHARGE, AND AUTHORIZING DISCOVERY
Class Definition And Addition of Class Agents
Pursuant to the Decision on Request for Reconsideration issued by the EEOC Office of
Federal Operations (OFO), Fogg v. Department of Justice, EEOC Request No. 0520120575
(November 17, 2015), on May 9, 2016, I Ordered the parties to provide briefing on the
appropriate date range for the class certified in the Commissions decision, and on the estimated
time required for discovery. I also authorized the Class Agent to submit a renewed motion to
amend, and ordered the parties to summarize the status of settlement negotiations.
Upon review of the Agencys June 27, 2016 Response to May 9, 2016 Order, the July 2,
2016 Class Agents Motion to Amend Class Charge, the Agencys July 18, 2016 Opposition to
Motion to Amend, Complainants August 1, 2016 Reply to Agencys Opposition to Motion to
Amend, and the Agencys August 12, 2016 Surreply, Complainants Motion to Amend is hereby
GRANTED.
1
The Amended Class Charge shall serve as the operable complaint for this case. The class
for this complaint is defined as all current and former African American Deputy U.S. Marshals
and Detention Enforcement Officers who were subjected to the Agencys policies and practices
regarding promotions, including reassignments and transfers, Headquarters assignments, and
hiring and recruitment from January 23, 1994 to present. Matthew Fogg shall remain a Class
Agent, and Antonio Gause, Regina Holsey, Thomas Hedgepath, Charles Fonseca, Ivan Baptiste,
Tracey Bryce and Theodore Riley shall be added as class agents.
Discovery
The parties may conduct discovery pursuant to EEOC Regulations at 1614.204(f). In

light of parties well-founded request for an extended period for discovery, discovery shall close
on December 1, 2017. The parties are expected to initiate and complete discovery without
intervention by the Administrative Judge. The parties will make every attempt to resolve
any discovery disputes without intervention by the Administrative Judge. If attempts to
resolve a dispute are unsuccessful, the moving party shall notify the undersigned via email
within five (5) calendar days of the impasse. Failure to timely raise objections to discovery
may result in waiver of such objections. The notification shall advise that a discovery dispute
has arisen, briefly describe the dispute and the parties efforts to resolve the dispute, and propose
two (2) dates/times when both parties are available for a teleconference with the undersigned to
address the dispute. The parties shall avail themselves of this process in an effort to quickly and
efficiently resolve discovery disputes requiring the intervention of the administrative judge, and
as a prerequisite to filing a motion regarding a discovery dispute. Any motion to compel or
request to develop evidence filed without prior resort to the informal resolution process
described herein may be rejected.
Dispositive Motions
Any Motions for Summary Judgment shall be filed no later than January 5, 2018.
Oppositions to any Motions for Summary Judgment shall be filed no later than February 9,
2018. Any Reply in Support of a Motion for Summary Judgment shall be filed no later than
February 23, 2018.
Settlement
I invite the parties to participate in a settlement conference to determine whether this

matter may be resolved without resort to discovery. In the event that the parties believe my
assistance of that of a neutral, third party settlement official would be mutually beneficial in
helping the parties achieve a resolution to this case through settlement, the parties may seek such
by joint motion. Prior to holding a hearing in this matter, I will require the parties to participate
in a settlement conference in advance of the hearing.
Sanctions
Failure to follow this Order or other orders of the Administrative Judge may result in
sanctions pursuant to EEOC Regulations at 29 C.F.R. 1614.109(f)(3) and 1614.2014(f)(2).
The Administrative Judge may, where appropriate:
2
(A) Draw an adverse inference that the requested information, or the testimony of the
requested witness, would have reflected unfavorably on the party refusing to provide the
requested information;
(B) Consider the matters to which the requested information or testimony pertains to be
established in favor of the opposing party;
(C) Exclude other evidence offered by the party failing to produce the requested
information or witness;
(D) Issue a decision fully or partially in favor of the opposing party; or
(E) Take such other actions as appropriate.
It is so ORDERED.
For the Commission:

Sharon E. Debbage Alexander
Administrative Judge
Telephone: (202) 419-0744
Facsimile: (202) 653-6053
Thomas J. Henderson, Esq.: THenderson@sanfordheisler.com

Joe Lazar: Joe.Lazar@usdoj.gov

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U.S.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

) EEOC No. 570-2016-00501X

ORDER DEFINING CLASS, GRANTING COMPLAINANTS MOTION TO AMEND

Class Definition And Addition of Class Agents

The parties may conduct discovery pursuant to EEOC Regulations at 1614.204(f). In

I invite the parties to participate in a settlement conference to determine whether this

(D) Issue a decision fully or partially in favor of the opposing party; or

(E) Take such other actions as appropriate.

For the Commission:

Thomas J. Henderson, Esq.: THenderson@sanfordheisler.com

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