EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
BALTIMORE DISTRICT OFFICE
CITY CRESCENT BUILDING
10 South Howard Street, Suite 3000
Baltimore, Maryland 21201

_______________________________	
WALTER FLOURNOY	)	EEOC CASE NO.
		)	120-A2-1267X
	CLASS AGENT	)
		)
	         V.	)	
		)
		)	AGENCY CASE NO
SEAN O'KEEFE, ADMINISTRATOR	)	NCN-92-GSFC-PO64
 NATIONAL AERONAUTICS &	)
       SPACE ADMINISTRATION	)
		)
	AGENCY	)
______________________________	)


DECISION GRANTING FINAL APPROVAL OF SETTLEMENT
AGREEMENT AND ADMINISTRATIVE ORDER NO. 1

I.	INTRODUCTION

This matter came before the Equal Employment Opportunity 
Commission ("EEOC" or Commission) on a Joint Motion for 
Final Approval of Settlement Agreement and Administrative 
Order No. 1 filed by Class Agent Walter Flournoy and all 
others similarly situated ("the Class"), and NASA 
Goddard Space Flight Center ("NASA Goddard" or "GSFC"). 
The parties moved for final approval pursuant to 
29 C.F.R.  1614.204(g) (4).

After almost a decade of litigation and mediation, the 
Class and NASA Goddard have submitted to the EEOC a 
settlement that they contend is fair, adequate and 
reasonable to the Class as a whole and that is the 
product of good faith, arms-length negotiations between 
the parties. Following vigorous advocacy and negotiations, 
the parties have agreed on a settlement that achieves the 
injunctive relief sought, in addition to significant 
monetary relief for one hundred twenty-four (124) current 
and former African American scientists and engineers of 
NASA Goddard who work or worked in GS-13 or GS-14 positions
from April 7, 1991 to February 25, 2002.

II.	FINDINGS OF FACT

Having considered the parties, joint motion and heard 
testimony during a Fairness Hearing that was held before 
the presiding Administrative Judge on July 8, 2002, 1 now 
make the following factual findings:

A.	Litigation

This litigation originated on April 7, 1993, when Class Agent 
Walter Flournoy filed an administrative class complaint alleging 
racial discrimination against "all African American employees in 
scientific and/or engineering non-managerial positions at the 
GS- 13 and GS-14 levels in Goddard Space Flight Center, NASA, 
who are evaluated for promotion to the GS-14 and GS-15 levels 
by the Manpower Utilization Review Council and who if at the 
GS-13 level have not been promoted to the GS-14 level and if 
at the GS-14 level have not been promoted to the GS-15 level,- 
in violation of Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 52000 at seq. ("Title V11").

NASA Headquarters forwarded the complaint to the EEOC for 
processing. Between May 1993 and March 1998, the parties 
litigated the issue of class certification. On March 3, 1998, 
the Commission's Office of Federal operations (OFO) issued a 
decision provisionally certifying the Class and directing NASA 
Goddard's continued processing of the complaint. In April 1998, 
NASA Goddard requested reconsideration of the OFO decision. 
On October 19, 2000, OFO upheld its previous decision.

	B.	Negotiation and Mediation

In or about March 1998, the parties began attempts to resolve this 
matter without further litigation and hearing. In February 2001, 
the parties turned to mediation facilitated by Linda Singer, Esq. 
of ADR Associates, a leading authority in the field of alternative 
dispute resolution. Under Ms. Singer's facilitation, they engaged 
in intensive mediation over the course of approximately fourteen 
months, entailing ten (10) team sessions with GSFC management and 
Class Mediation Representatives, as well as multiple lawyers, 
negotiating sessions and almost daily counsel mediator exchanges. 
The GSFC management team consisted of Dorothy Kerr, Esq., and 
Marleen Phillips, Esq., of the GSFC Chief Counsel' s Office, Arthur 
F. Obenschain, Director, Applied Engineering & Technology Directorate 
("AETD"), Jerry Simpson, Director, Office of Human Resources, 
Mary Kicza, former Associate Center Director, and though not in 
attendance, Al Diaz, Center Director. The Class was represented by 
Maia Caplan, Esq., and Jessica Parks, Esq., of Kator Parks and Weiser, 
PLLC, and by its Mediation Representatives, Class Agent Walter 
Flournoy, and Bill Weston, Pat McClain, Leroy Brown and Bill Reaves.

During the mediation process, the parties undertook substantial 
discovery, examination and analysis of personnel files and computerized 
databases. The parties each were assisted in their liability and damages 
analyses by nationally recognized statistical experts. Both parties also 
engaged in extensive preparatory sessions for meetings and counsel exchanges.


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The mediation culminated in April 2002, when the parties agreed to end 
the litigation and executed the Settlement Agreement ("Settlement"). 
The Settlement, which consists of monetary and injunctive relief, together 
with Administrative Order No. 1, is currently before the presiding 
Administrative Judge on motion for final approval.

	C.	Summary of Settlement terms

The Settlement provides a wide range of injunctive and monetary relief, 
summarized below, which addresses employment issues that would have been 
litigated in this case absent the Settlement. While triggered by claims 
of race discrimination against a class of one hundred twenty-four (124) 
scientists and engineers, these measures are intended to benefit all NASA
employees at Goddard by promoting fairness, consistency and objectivity 
in the administration of employment practices. NO employee will be displaced 
from his or her job or from promotional opportunities an a result of any
 provisions of the Settlement.

	Key features of the Settlement include:

	Appointment of Dr. Elaine Pulakos of PDRI, Inc., an independent 
neutral expert, to assist NASA Goddard in reviewing and redesigning its
 performance management system, including promotions and training, 
subject to review by 
Class Counsel and oversight by the Commission;


	Appointment [I1]of Edna Povitch of the Center for Dispute 
Settlement, 
an in dependent neutral mediation expert, to assist NASA Goddard in 
reviewing and redesigning its alternative dispute resolution procedures 
for informal discrimination charges;

	A minimum of ten (10) prospective promotions following a review of 
all currently employed Class Members;

	Twelve (12) retroactive promotion awards for retired or retirement 
eligible
 Class Members, which awards confer enhanced retirement annuities;

	A minimum of ten (10) opportunities for class Members to participate 
in NASA Goddard's Accelerated Leadership Program, successful completion of 
which will result in an FPL of GS-14;

	"Make-whole relief" for back pay, interest and compensatory damages in 
the amount of two million, two hundred and eighty-six thousand, four hundred 
and fifty-nine dollars ($2,286,459.00), as determined by data on promotion 
rates by race to determine actual losses that

  	
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could be proven by the Class under prevailing law;

	Special service award payments to Mediation Representatives in the 
total amount of five hundred thousand dollars ($500,000);

	An automatic promotion for the Class Agent should he wish to remain 
at 
NASA Goddard, which promotion shall count against the minimum of ten 
(10) promotions to be awarded to current employee Class Members; and

	Monitoring of compliance with the Settlement through semi-annual 
reports 
of Class Counsel to the Commission, and continuing Commission 
jurisdiction 
over the parties and enforcement actions, if any, for a period of three 
(3) years.

	D.	Specific Settlement Terms

		1.	Class Definition

For settlement purposes, the Class is defined as:

All African American non-management, non-supervisory scientists and engineers 
at NASA Goddard in GS-13 and GS-14 positions who were eligible for and 
denied promotions to the GS-14 and OS-15 levels at any time from April 7, 1991 
to February 25, 2002. Settlement Agreement at 11. The Settlement bars all 
claims of Settlement Class Members based on events that give rise to, or 
could give rise to, race discrimination claims relating to denial of 
promotional opportunities to the GS-14 or GS-15 levels during the liability 
period - commencing April 7, 1991 and ending February 25, 2002.

		2.	Settlement Term

The term of the Settlement is three (3) years, which may be extended only 
as provided in the Settlement or by order of the Commission if warranted 
under applicable law. During the three-year Settlement period, NASA Goddard 
will regularly meet with and report to Class Counsel about its compliance 
with Settlement obligations. If NASA Goddard fails to carry out any of 
its obligations, Class Counsel may bring an enforcement action following 
attempted voluntary resolution of the dispute.

		3.	Settlement Fund for the Class Agent and Class Members

The Settlement provides that NASA Goddard will make a deposit into the 
Settlement Fund to pay the claims of the Class Agent and Class Members for 
back pay, interest and compensatory damages, the contribution enhancements 
for Mediation Representatives, and

4


Attorneys' fees and costs. Within thirty (30) days of Final Approval, NASA 
Goddard will deposit three million, seven hundred fifteen thousand, two 
hundred and seventy-eight dollars ($3,715,278.00) into the Settlement Fund. 
The Settlement Fund will be administered by Class Counsel pursuant 
to Administrative Order No. 1. Two million, two hundred eighty-six thousand, 
four hundred fifty nine dollars ($2,286,459.00), plus allocable interest 
and earnings, will be devoted to the settlement of the claims of Class 
Members, and will be entitled the "Claims Fund." Five hundred thousand 
dollars ($5OO, 000), plus allocable interest and earnings, will be divided 
among the Mediation Representatives in recognition of their special 
contribution to the prosecution and mediation of the action, and will be 
entitled the "Contribution Fund." An additional nine hundred twenty-
eight thousand, eight hundred and nineteen dollars ($928,819.00), Plus 
allocable interest and earnings, shall be used to pay class counsel and 
Payees, as defined in section III.B.1 of the Settlement, for attorneys, 
ees and expenses for past services rendered. Prospective fees, such as 
for administration of the Settlement Fund, and monitoring (and if 
necessary enforcement) of NASA Goddard's performance of its duties under 
the Settlement over its term, are exclusive of this amount and shall be 
paid by NASA Goddard as set forth in section III.B.1 of the Settlement. 
No disbursements may be made from the Claims Fund to anyone without 
Commission review.

The allocation of monetary awards from the Claims Fund to the Class Agent 
and Class Members shall be based on the formula devised by the Class and 
set forth in Exhibit 5 of the Settlement Agreement. Under the formula, 
points are assigned based on numerous factors including length of 
service and performance. It is anticipated that Class Members will receive 
the majority of their monetary award within six months following Final 
Approval of the Settlement, although Administrative Order No. 1 permits 
Class Counsel to hold a portion of the awards for later distribution 
pending review of tax liability by the internal Revenue Service.

			4.	Promotional Relief for Retirees and Retirement Eligible Class 
Members

Under the Settlement, twelve (12) promotion awards will be distributed to 
retired and retirement eligible Class Members who elect to retire, pursuant 
to the formula set forth in Exhibit 1 of the Settlement. Such awards 
are retroactive to five (5) years from the date of retirement, and consist 
of an initial award such that the Class Member's pay at the higher grade 
rate is the equivalent of a two-step increase in the grade from which he 
or she was promoted, plus the automatic steps that would have accrued within 
the five (5) years. Promotion award recipients under this section will 
receive back pay and compensatory damages pursuant only to the monetary 
formula as applied to the entirety of the Class, and will not receive 
them directly as a consequence of their promotion. Recipients will, 
however, directly receive enhanced back annuity

5

payments directly (following their contribution of the employee portion), 
as well as prospective annuity enhancements.

			5.	Promotion Review Process for Current Class Members
			and Others

The Settlement provides for a minimum of ten (10) promotion awards to 
current employee Class Members who are not eligible for retirement or 
elect not to retire. NASA Goddard will determine eligibility for promotion 
awards in accordance with the methodology set forth in Part III.C.2 of 
the Settlement, which provides that within thirty (30) days of Final 
Approval, Branch Heads will complete and forward promotion packages for all 
Class Members and provide them to the Director of AETD who may consult with 
other Directors if necessary. The Director of AETD will complete his review 
of the promotion potential of each Class Member and notify such Class 
Member of the results within seventy-five (75) days of Final Approval. 
Class Members determined to be immediately ready for promotion shall be 
promoted within five (5) months of Final Approval or sixty (60) days after 
the Effective Date, whichever is later. Class Members who are determined to 
be ready for promotion within twelve (12) months of Final Approval will 
receive near-term concentrated training and work assignments that, if 
successfully completed, shall result in those Class Members being promoted 
within twelve (12) months of Final Approval or sixty (60) days after the 
Effective Date, whichever comes later.

The Settlement also provides that NASA Goddard will, within twelve (12) 
months of Final Approval, review all scientists and engineers at the GS-13 
and GS-14 levels who are not Class Members and who have eight (8) or more 
years time-in-grade and promote those who merit promotion.

6. Review and Redesign of Performance Management System 
Process under Auspices of Independent Expert

	Subject to the extension provisions of Part III.A.l.c of the 
Settlement, within one year of its Effective Date, Part III.A.2 of the 
Settlement provides that NASA Goddard produce and implement a revised and 
non-discriminatory performance management system. The performance 
management system encompasses all processes governing accretion and career 
ladder promotions, awards, training and performance appraisals. Dr. Blaine 
Pulakos of PDRI, Inc. will serve as an Independent Expert to provide 
consultation services and recommendations to NASA Goddard, and Class 
Counsel, during the review process. The revised system will provide for, but 
in not limited to, objective measures of performance, application of 
standards consistent with those promulgated by the Office of Personnel 
Management, standardized evaluations and assessment forms, feedback to employees 
including in the form of annual reviews, performance goals, an appeals process, 
supervisory accountability, and training for employees. Also, under the

6


revised process, no manager or supervisor of Class Members is eligible for 
promotion for a period of one-year following appraisal if he or she receives an 
unsatisfactory score on the new critical EEO element of their performance 
appraisal. Disagreements over the content and adequacy of the revised process, if 
any, are subject to Part IV of the Settlement, which addresses enforcement.

			7.	Review and Redesign of Alternative Dispute Resolution 
Processes for EEO Claims

Under Part III.A.5 of the Settlement, NASA Goddard, in conjunction with 
independent expert Edna Povitch of the Center for Dispute Settlement, will 
evaluate and redesign its alternative dispute resolution ("'ADR11) process for 
informal EEO disputes. Class Counsel will be apprized of the recommendations for 
reform, and have opportunity to consult with the independent expert.

			8.	Monitoring and Enforcement

Part IV of the Settlement sets forth multiple mechanism for monitoring the 
parties' compliance with the settlement over the course of its three (3) year 
term. Among them is the requirement that NASA Goddard's Associate Center Director 
and Class Counsel meet periodically - quarterly during the first year of the 
Settlement and biannually thereafter. If issues or disputes arise that mandate 
more immediate attention, the Settlement provides processes for informal 
negotiation between the parties, followed by mediation with ADR Associates, and, 
if necessary, for proceedings to enforce the provisions of the Settlement before 
the presiding Administrative Judge consistent with 29 C.F.R. 1614.504. The 
Settlement also provides for statistical data on promotions to be provided to 
Class Counsel for review on a biannual basis, in addition to other materials 
including surveys regarding Individual Development Plans, and the revised EEO ADR 
process. Finally, Class Counsel will annually file a written report with the 
presiding EHOC Administrative Judge concerning the Settlement's implementation.

		E.	Notice Preceding the Fairness Hearing

Notice of the Settlement, which summarized the Settlement terms, as well as the 
complete Settlement Agreement and Administrative Order No. 1, were sent via NASA 
Goddard to each Class Member either via electronic mail, if the Class Member was a 
current employee, or via certified mail to former NASA Goddard employees.

The Notice of the Settlement contained a concise summary of the Settlement terms. 
It also contained explicit instructions for filing comments on and/or objections 
to the Settlement within a period of one month. Finally, it provided contact 
information to Class Members of Class Counsel and the Claims Administrator in the 
event that a Class Member had questions.

7


Following distribution of the Notice of Settlement and Settlement, Class Counsel 
notified the Class that it would be holding, and on May 22 Id held, an 
informational session on the Settlement terms on-site at GSFC. Class Counsel also 
spoke with several Class Members via telephone to answer questions. NASA Goddard's 
management team likewise held four "brown bag" lunches throughout May to present 
the Settlement terms to GSFC's larger community.


III.	CONCLUSION OF LAW

Based upon the foregoing findings of fact and the standard iterated below, I draw 
the following conclusions of law:

		A.	The Standard for Final Approval

Similar to Rule 23 of the Federal Rules of Civil Procedure, EEOC Regulations at 29 
C.F.R. 51614.204 requires approval by the presiding Administrative Judge of a 
settlement of a class complaint. 29 C.F.R. 1614.204(g)(4). Cf. Fed. R. Civ. P. 
23(s) (class actions "shall not be dismissed or compromised without the approval 
of the Court"). The standard of review for final approval is that the class 
settlement must be "fair, reasonable and adequate." 29 C.F.R. 51614.204(g) (4) 
("If the administrative judge finds that the resolution is fair, adequate and 
reasonable to the class as a whole, the resolution shall bind all members of the 
class.").Accord Burden v. Barnhart, EHOC Case No. 120-99-6378X (2002). C.f., 
Thomas v. Albright, 139 F.3d 227, 231-33 (D.C. Cir.), cert. denied, 535 U.S. 1033 
(1998); Davis v. City and County of San Francisco, 890 F.2d 1438, 1445 9th Cir. 
1989), cert. Denied, 498 U.S. 897 (1990); In re Nat'l Student Marketing 
Litigation, 68 F.R.D. 151 (D.D.C. 1974).

To assess fairness and adequacy, courts examine a variety of factors including: 
whether the settlement is the result of arm's length bargaining; the terms of the 
settlement vis--vis the strength of the complaint; the status of the litigation 
at the time of settlement; the reaction of the class; and the opinion of counsel. 
In re Vitamins Antitrust Litig., 2000 U.S. Dist. LEXIS 8931 at *18 (D.D.C. Mar. 
20, 2000); Thomas, 139 F.3d at 230-331 Pigford v. Glickman, 185 F.R.D. 82, 98-102 
(D.D.C. 1999); Burden, EHOC Case No. 120-99-6378X at 7 n.4.

Further, courts generally conduct this review in the context of two broader 
principles. First, courts favor compromise to obviate the uncertainties of 
litigation and avoid wasteful expense. Pfizer Inc. v. Lord, 456 F.2d 532, 543 (81h 
Cir.), cart. denied, 40 U.S. 976 (1972); Era on v. Barry, 752 F.Supp. 1087, 1100 
(D.D.C. 1990) ("Particularly in class action suits, there is an overriding public 
interest in favor of settlement"); Osher v. SCA Realty,

8



Inc., 945 F.Supp. 298, 304 (D.D.C. 1996) (preference for "resolution of disputes 
through voluntary compromise" is especially strong in class actions "given the 
expenses and judicial resources required"); Luevano v. Campbell, 93 F.R.D. 68, 85 
(D.D.C. 1981) (noting "strong preference of Congress for encouraging voluntary 
settlement of employment discrimination claims"); Cotton v. Hinton, 559 F.2d 1326, 
1330-31 5th Cir. 1977) ("the policy favoring settlement is even stronger in view 
of the emphasis placed upon voluntary conciliation by the Act (Title VII itself") 
And second, courts must ensure that the interests of non-party class members are 
protected. Pigford, 185 F.R.D. at 98 (settlement must not be the product of 
collusion between the parties), Thomas, 139 F.3d at 231 (same).

It is not the function of the presiding judge during the fairness review to make 
ultimate determinations of law or fact on those issues underlying the dispute. 
Grunin v. International House of Pancakes, 513 F.2d 114, 123-24 (8th Cir. 1975); 
In re Smith, 926 F. 2d 1027, 1028 (11th Cir. 1991); Cotton, 559 F. 2d at 1330. 
Rather, considerable discretion is left to the parties to fashion a reasonable 
compromise. Manual for Complex Litigation, Second  30.42 at 225 (1986). The "test 
is whether the settlement is adequate and reasonable and not whether a better 
settlement is conceivable." In re Vitamins Antitrust Litig., 2000 U.S. Dist. LEXIS 
8931 at *19 (D.D.C. Mar. 20, 2000). Accord Pigford, 185 F.R.D. at 103.

		B.	The Settlement Meets the Standards for Final Approval

As herein discussed, analysis of the record warrants approval of the Settlement.

			1.	The Settlement is Fair. Adequate and Reasonable

Examination of the Settlement and the circumstances surrounding its negotiation 
demonstrate that it is fair, adequate and reasonable.

			a.	There are Risks Attendant to Trial Without Countervailing 
Gains

Class Counsel investigated the Class claims and NASA Goddard's potential defenses 
and have concluded that the terms of the Settlement represent a good result for 
the Class. While the Class might have prevailed in this case had it gone to trial, 
such outcome is far from guaranteed.  E.g., Ingram v. Coca-cola Company, 200 
F.R.D. 685, 689 (N.D. Ga. 2001) (reciting statistical success rates of employment 
discrimination claims). To approximate the relief provided in the Settlement, the 
Class would have had to prevail on pattern and practice liability, and the one 
hundred twenty-four (124) Class Members would have had to establish their

9



individual entitlement to damages. Had the Class proceeded and not prevailed in 
establishing pattern and practice liability, it would have been left with no 
relief. Id. As well, had the case proceeded in litigation, the Class would have 
been forced to defend provisional class certification against HASA Goddard's 
challenges. Courts are increasingly divided as to whether certification in 
appropriate where the class seeks not only back pay and injunctive relief, but 
compensatory damages as well. E.g., Allison v. Citgo, 151 F.3d 402 (5th Cir. 
1998). Accordingly, resolution now obviates these risks to the Class, as well as 
the risk of additional substantial delay. E.g., Hartman v. Powell, Civ. No. 77-
2019 (D.D.C. 2000) (two decade-long litigation against Department of State).

Equally as important, the relief accorded by the Settlement is unlikely to be 
substantially enhanced by further litigation. Both the Class and NASA Goddard 
employed statistical experts. While the parties disputed the extent of the 
statistical disparity in promotion rates - indeed whether the disparity was 
statistically significant or not - the parties were able eventually to reach a 
Settlement that approximates in relief to the Class the promotional shortfall 
calculated by its expert. The parties agreed that for purposes of settlement, the 
monetary relief under the Settlement would track the potential monetary losses 
including interest for the Class shortfall position. The Settlement Fund is also 
comprised of approximately tan thousand dollars ($10,000) per Class Member in 
compensatory damages. Given this, continued prosecution of the complaint would 
likely result in great delay, without any significant enhancement of benefits to 
the Class but with a great increase in risk of failure.

			b.	The Stage of the Litigation is Advanced and Provides Ample 
Basis for Both Counsel to Evaluate Cases

The Class Complaint was filed in April 1993, and has been the subject of almost 
ten years of litigation, including three (3) years of negotiation and almost a 
year and a half of intensive mediation. The time spent in litigation and mediation 
has given the parties abundant opportunity to familiarize themselves with the 
legal and factual issues. Through mediation, the parties expedited discovery of 
extensive computerized personnel data, and information concerning current and 
historic promotions and equal employment opportunity dispute resolution policies. 
This info-nation is precisely the type that Class Counsel would ultimately have 
sought and relied on in the event of litigation and trial. Thus, counsel had more 
than sufficient information to evaluate their cases vis--vis settlement 
negotiations.

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c. 	There Is Negligible Opposition to the Settlement

The Class is almost unanimously supportive of the Settlement. In response to the 
Notice provided to all Class Members via e-mail and certified mail, only one Class 
Member sent a letter objecting to the terms of the Settlement) that letter wan 
from Mr. Flournoy. Class Agent Flournoy stated that under the Settlement he should 
have received a two-grade promotion award while remaining at NASA Goddard, as 
opposed to an automatic one-grade promotion if he remains employed or a projected 
two-grade promotion on retirement. While this argument ham been considered, a 
"claim that individual dissenters are entitled to more [relief] is riot, by 
itself, sufficient to reject the overall fairness of the settlement." Thomas, 139 
F.3d at 232-33. Accord Stewart v. Rubin, 948 F.Supp. 1077, 1087 (D.D.C. 1996) 
(same), aff1d, 124 F.3d 1309 (D.C. Cir. 1997). This holds true even if it is the 
Class Agent who objects. Id. at 232; Maywalt v. Parker & Parsley Petroleum Co., 67 
F.3d 1072, 1077-78 (2d Cir. 1995) (affirming approval of settlement 
notwithstanding objections from four out of five named plaintiffs; "a contrary 
view would put too much power in a wishful thinker or a spite monger to thwart a 
result that is in the best interests of the [class]") (internal citations 
omitted); Reed v. General Motors Corp., 703 P.2d 170, 174-75 (5th Cir. 1983) 
(same); Flinn v. FXC Corp., S28 F. 2d 1169, 1174 & n. 19 (4th Cir. 1976) (same).

As a result of the terms of the Settlement, Mr. Flournoy is the only Class Member 
guaranteed to receive an "automatic" promotion without condition of a supervisory 
review. He also is to receive $100,000 for his efforts in bringing and pursuing 
this case. In addition, he will receive, by formula, a sum of money from the Fund.

There are one hundred twenty-four (124) Class Members. Mr. Flournoy's objection to 
the Settlement equates to objections from less than one percent of the Class. This 
extraordinary lack of opposition unambiguously endorses the Settlement as fair, 
adequate and reasonable in the opinion of most Class Members. Mr. Flournoy's 
objection and quest for additional relief does not alter this result.

While it is permissible for a Class Agent to receive "incentive" payments owing to 
[his) increased risk of retaliation and for [his] services to the Class generally, 
see supra at 18, under the Settlement, the Class Agent is guaranteed $100,000 and 
a one-grade promotion if he remains at NASA Goddard, in addition to sharing 
equally in the Claims Fund pursuant to the monetary formula. This incentive 
payment adequately compensates Mr. Flournoy for his services.

11


As a result of the Settlement, if he elects to retire, he is likely to receive a 
two-grade, retroactive promotion. While Mr. Flournoy's disappointment is 
recognized, "inherent in compromise is a yielding of absolutes and an abandoning 
of highest hopes." E.g., Stewart, 948 F.Supp. at 1087. Mr. Flournoy stated at the 
hearing on July 8th that he believed that he was being retaliated against in the 
Settlement by not being given the same promotional advantage while staying that he 
would receive if retiring. However, the benefits to be received while remaining 
employed at NASA Goddard are substantial and do not reflect a retaliatory animus. 
They do reflect reward for over 47 years of Federal service and more that 30 years 
in grade. They do represent a remedy for having brought forward concerns, yet to 
be proven, that have caused major institutional benefits to the Agency and the 
workforce.

In addition, it is noted that Mr. Flournoy freely and without coercion signed the 
Settlement Agreement on April 24, 2002. Mr. Flournoy's objections are not 
persuasive that the Settlement is other than a fair, adequate and reasonable 
resolution of the above captioned EEO Class Complaint.

			d.	Experienced Counsel for the Class and Agency Agree that the 
settlement is Fair, Reasonable and Adequate

In considering whether to approve a Settlement, courts defer to the judgment of 
experienced counsel "who have competently evaluated the strength of the proof" and 
assessed the risks, expense and delay of litigation. Stewart, 948 F.Supp. at 1087. 
After nearly ten years of litigation, counsel for the Class and NASA Goddard have 
concluded that this Settlement should be approved. They are sufficiently 
experienced to reach this determination. Class Counsel has extensive experience 
litigating employment discrimination complaints, including both federal and 
private sector class actions. In particular, Ms. Caplan, formerly a partner at the 
class action firm of Sprenger & Lang, specializes in class action litigation and 
has been involved in the litigation and resolution of multiple class actions, 
including: Young v. Dreamworks, No. BC 268838 (L.A. Sup. Ct. 2002), and related 
cases; McZaurin v. Amtrak, 98-CV-2019 (D.D.C.); Thornton v. Amtrak, 98-CV0890 
(D.D.C.); Dyer v. Publix, 97-2706-CIV-T-25E (N.D. Fla.); Jones v. Ford Motor Co., 
95-MD-1044 (S.D. Mich.); and Martens v. 3M, CO98-2303 (Minn. Ct. App.). Ms. Parks 
was formerly Vice Chair, U.S. Merit Systems Protection Board. Their firm, Kator 
Parks & Weiser, has substantial experience representing federal employees in 
complaints of discrimination against their employers.

12


e.	There Was No Collusion Between the Parties

After hearing statements from Ms. Singer, Ms. Kerr and Ms. Caplan, and given the 
nearly ten years of litigation and mediation, it is clear that the Settlement is 
the result of non-collusive and vigorous arms-length bargaining between NASA 
Goddard and the Class. Over the course of the litigation, the parties exchanged 
and rejected numerous proposals and counter-proposals, prior to arriving at this 
hard-fought Settlement.

In addition, the amount of fees awarded to Class Counsel amounts to approximately 
twenty-five percent (25%) of the total monetary recovery (the estimated value of 
the entire Settlement package, including enhanced annuities and prospective pay 
raises, exceeds $3.71 million). This award is well within the parameters of 
reasonable fee awards, and as such, raises no inference of collusion. Furthermore, 
it is based on the contingency fee arrangement between counsel and the Class. See 
In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 
768, 822 (3d Cir. 1995) (fee awards ranging from 19 to 45%).

Similarly, the contribution awards to the Mediation Representatives are of the 
type routinely approved given the enhanced risks taken by class representatives, 
and the work performed by them. In re Dun & Bradstreet, 130 F.R.D. 366, 373-74 
(S.D. Ohio 1990); Martens v. Smith Barney, Inc., Final Order and Judgment: 
Approving Class Action Settlement and Dismissing Claims, No. 96 Civ. 3779, 1998 WL 
1661385, at *4 par. 28 (S.D.N.Y. July 28, 1998); Burden v. Barnbart, EEOC Case No. 
120-99-6378X. Here, each of the Mediation Representatives, and particularly the 
Class Agent, spent a great deal of time, and was very active in advising Class 
Counsel in the prosecution and settlement of this case. In short, there is no 
evidence of collusion, and the presiding Administrative Judge is satisfied that 
the Settlement in the product of arms-length bargaining.

IV.	CONCLUSION

For the foregoing reasons, I find that the Settlement is fair, adequate and 
reasonable to the Class as a whole. I find no basis for vacating the Settlement 
Agreement entered in this case. Consequently, I GRANT the parties' Joint Motion 
for Final Approval of the Settlement Agreement and attendant Administrative Order 
No. 1.

For the Commission on July 10, 2002




LINDA A. KTNCAXD
ADMINISTRATIVE JUDOZ

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