EEOC accuses state civil rights agency of conflict

The U.S. Equal Employment Opportunity Commission accused California's civil rights agency of a conflict of interest when it objected to a settlement of workplace discrimination claims between the federal agency and the game creator Activision Blizzard.

In court papers filed Saturday, the EEOC said two unidentified lawyers at the California Department of Fair Employment and Housing previously worked at EEOC and were part of the team that investigated Activision Blizzard.

"The need for a robust protective remedy is especially great given the unique circumstances of this case, where two former EEOC attorneys intimately involved in investigating charges against Activision while at the EEOC now seek to oppose the consent decree that is the culmination of that very investigation," EEOC senior trial attorney Taylor Markey wrote.

Representatives for the state agency could not be reached for comment Monday. The two state lawyers working on the Activision Blizzard investigation who formerly worked at EEOC are Rumie Vuong and Sue Noh, according to their LinkedIn biographies.

The filing is another salvo in a battle over how best to hold Activision Blizzard responsible for allegedly facilitating a workplace environment that several women said was sexist and discriminatory. The state agency filed a motion on Oct. 6 to intervene in an $18 million settlement between EEOC and Activision Blizzard that the state says would allow the company to destroy documents that might be relevant to the state's investigation.

The state agency successfully intervened as plaintiffs in a similar discrimination case in Los Angeles County Superior Court involving Riot Games Inc., another game creator facing similar allegations, after objecting to a preliminary $10 million class settlement in 2019.

Lawyers for the women said state agency officials have become too political and are uninterested in financially making whole women who say they suffered in a sexist environment and received unequal pay.

The agency officials and attorneys say they are focused on bringing about systemic change to the game creation industry.

Los Angeles County Judge Elihu M. Berle last month ruled, over the state's objection, that the class of women could resume settlement talks with Riot Games. U.S. District Judge Dale S. Fischer has not ruled on the state's motion to intervene in the EEOC's case against Activision Blizzard.

In her motion Saturday, the EEOC's Markey asked Fischer to prohibit the state agency's entire legal department from being involved in the intervention request, and to bar any disclosure of attorney work product to outside counsel the agency hired at Olivier Schreiber & Chao LLP.

In its ex parte motion to intervene filed Oct. 6, the state said a proposed decree between EEOC and Activision Blizzard would destroy stronger civil rights protections and reduce compensation for aggrieved employees, and harm its own civil enforcement pending in Los Angeles County Superior Court. The agency further argued the proposed $18 million settlement was inadequate. U.S. EEOC v. Activision Blizzard Inc., 21CV7682 (C.D. Cal., filed Sept. 27, 2021).

The two agencies agreed in 2020 to divvy up investigation responsibilities: EEOC would handle sexual harassment claims and the state would handle internal promotions and pay inequity. EEOC and the state signed an interagency deal to protect the public and aggrieved individuals from confusion and re-traumatization that could result from two investigative bodies requesting the same sensitive information, the declaration states.

In June 2021, the EEOC concluded its probe and issued findings in a letter of determination against Activision Blizzard. Those findings were shared with the state, Markey wrote. But the state started its own civil enforcement action in Los Angeles County Superior Court against Activision Blizzard, which included sexual harassment claims. DFEH v. Activision Blizzard, 21STCV26571 (L.A. Super. Ct., filed July 20, 2021)

None of the state's attorneys could be reached Monday because of the holiday.

Legal ethics professor Gregory C. Sisk of University of St. Thomas School of Law in Minnesota said that former government lawyers who substantially and personally participate in a case can't be involved in the same matter on behalf of another public agency, unless they receive their prior employer's permission.

"You have a duty as a lawyer of trust and loyalty to that particular agency, and that agency gets to define as part of its mission how it intends to use confidential information. You can't take that confidential information into another setting, even if you think you're acting in a consistent or parallel manner," Sisk explained. "Whether this would be imputed beyond the agency itself to new private counsel is a different question."

EEOC's motion could hobble DFEH's state court enforcement action, according to P. Andrew Torrez, founding partner of Law Offices of P. Andrew Torrez in Maryland, who has closely tracked the case.