Postal Report Glover/Albrecht vs USPS -An EEOC administrative judge gave final approval June 10, 2004

V. DEFINITION OF THE CLASS

The Glover/Albrecht class is defined as follows: Those persons employed by the Agency through the United States between January 1, 1992, and the present while in permanent rehabilitation positions who were allegedly denied promotional and/or advancement opportunities allegedly due to discrimination on the basis of disability.

The phrase "advancement opportunities" was defined to mean vertical movement from a lower level grade and/or pay within the Postal Service system, to a position at a higher level grade and/or pay. The phrase "promotional opportunities" was defined to include training, assignments, details, and awards that would have enhanced a class member's qualifications for promotion to such position, whether the promotion would have been a career ladder promotion or a competitive promotion. The phrase "permanent rehabilitation employee" was defined to mean any current or former Postal Service employee injured in the performance of his/her duties, who as of January 1992, and forward: (1) had a claim accepted by the U.S. Department of Labor, Office of Worker Compensation Programs for wage loss and permanent partial disability; and (2) was provided with an indefinite modified job assignment or position, upon return to work.

VI. THE TERMS OF THE PROPOSED SETTLEMENT

The terms of the proposed settlement were succinctly described by the Agency in its brief as follows:

Under the terms of the Settlement Agreement class members will be eligible for class-wide injunctive as well as individual relief through a claims process. In order to obtain any individual relief, an individual must first file a timely claim and participate in the claims process. No individual who files a claim form, not even the Co-Class Representatives Glover and Albrecht, is guaranteed any individual relief. Rather, each individual claim can be dismissed for failure to state a claim, settled, or arbitrated. An individual can only receive individual relief if the person's claim is settled or the individual wins at arbitration.

The claims process is divided into four distinct phases. In Phase One of the claims process, the class claims administrator will distribute claim forms to individuals who have been identified by the parties as potential Class members. Claim forms will also be available on the internet. Individuals then will be required to submit timely claim forms. A third party arbitrator will resolve disputes over whether the claim is timely. The parties will review the claim forms. Claims submitted by individuals who are not Class members will be dismissed by agreement of the parties. The parties will also discuss settlement of groups of claims.

In Phase Two, the parties will exchange extensive discovery on the remaining individual claims. All remaining claimants will submit a second claim form that is more detailed than the initial claim form. The USPS will submit an answer to each remaining individual claim. The parties will also be permitted to serve additional discovery requests specifically tailored to each individual.

In Phase Three, individual claims will be mediated, either in-person or by telephone, if both sides agree to mediate the claim. All claims that are not settled or dismissed will proceed to binding arbitration in Phase Four. The burdens of proof at arbitration are a compromise between the burdens of proof set forth under 29 C.F.R. Section 1614.201(I)- where a finding of discrimination against a class has been made- and the burdens of proof in individual hearings.

For claimants successful at arbitration, the parties agreed to a compromise on the amount of individual relief. For promotional opportunities, defined as assignments, details, awards, and formal training that would enhance a Class member's qualifications for promotion, the parties agreed to a fixed amount of damages-$300 for denial of awards, $500.00 for denial of training, and $2,000 for denial of a detail/assignment.

For denial of an advancement opportunity, defined as vertical movement from a lower level grade and/or pay within the USPS system to a position at a higher level grade and/or pay, the parties agreed to a fixed amount for compensatory damages for all claimants (except Glover and Albrecht) ranging from $4,500 to $10,000, depending upon the year of the denial of opportunity. Claimants will also receive a fixed amount of back pay damages for the most common advancements in the craft ranging from $964 to $15,048, depending upon the year of the denial of the opportunity. For other positions, claimants will receive an amount of damages based on an actual back pay calculation. In addition, if an individual was denied advancement to an EAS position or letter carrier position, the individual may be awarded placement. The damages are capped at a combination of (a) denial of one promotion and one award, training or detail or (b)any two promotional opportunities. The parties have agreed to extensive class-wide injunctive relief. The USPS has agreed not to deny opportunities to permanent rehabilitation employees in violation of the Rehabilitation Act. The USPS has also agreed to review and revise several employment policies and to provide additional training on the Rehabilitation Act to a wide variety of employees. Furthermore, the USPS will set up a program whereby permanent rehabilitation employees may state comments and concerns about promotional and advancement opportunities outside the EEO process. Finally class counsel will monitor USPS compliance with the Rehabilitation Act and can file an enforcement action if they observe a systemic pattern of non-compliance as defined in the settlement agreement. (Agency Brief at p.7-9).

As will be discussed in greater detail below, the terms of the Settlement Agreement also provide for the payment of attorney's fees, costs and provide for legal representation without cost to claiming class members throughout the process.

With respect to the Complainants' approval of the Settlement Agreement it is to be expected in a class this size that some persons would inevitably object. Nonetheless, only .3% of those who could have filed objections did so. A reasonable conclusion to be drawn from the small number of objections is that the vast majority of the potential class members consider the terms of the settlement agreement to be fair, reasonable and adequate. I therefore find no reason to substitute my judgment for that of the parties and/or their respective counsel.

E. Consideration of Other Factors

1. The Protection of Class Members Whose Rights May Not Have Been Given Adequate Consideration During the Settlement Negotiations.

This factor, although an important consideration for the Commission, requires little discussion. The vigorousness of the advocacy, the broad-based impact of the non-monetary provisions along with readily apparent across-the-board eligibility of class members to recover monetary recompense all point to the fact that the Settlement Agreement was negotiated with an eye toward recovery as a whole for all class members. See Alvarado, 723 F.Supp. at 546. I find that class counsel adequately protected the rights of all Complainants, and that there is no evidence that certain Complainants' rights may not have been given adequate consideration during the settlement process.

2. The Risk of Establishing Damages at Hearing

As I have noted above in the discussion regarding the risks of litigation, there are significant risks of establishing damages at hearing assuming Complainants were to prevail during the liability phase. It is clear that the parties have balanced the risks of establishing damages in favor of defined monetary amounts as more fully set forth above in Section VI. I find that the certainty established by the Settlement Agreement regarding damages provides an equal basis from which the varying claims of different potential claimants can be globally and individually reviewed and assessed. The attempt to fairly address the damages issues is apparent on the face of the Settlement Agreement.? For example, the Settlement Agreement provides for greater relief for persons who were denied promotional and/or advancement opportunities in the 1990's than for those that were allegedly denied such opportunities in the subsequent decade.

I find nothing in the balancing of these risks to suggest that the Settlement Agreement is anything but fair, adequate and/or reasonable. An objective analysis of this factor supports my decision to approve the Settlement Agreement.

4. The Range of Possible Settlement

If approved, the proposed settlement will provide a process for the payment of monetary benefits to the aggrieved individuals. The extent of relief that could be recovered if the case were successfully litigated to a conclusion cannot be determined with any degree of certainty. What is certain is that continued protracted litigation would delay for many years relief for those persons who may receive immediate benefits under the terms and conditions of the Settlement Agreement. As discussed above, class counsel and those for whom relief is sought face obvious risks in litigating what undoubtedly would be a vigorously contested case with many uncertainties as to the ultimate outcome.

Given the risks inherent in proceeding with this litigation, I find that it is prudent to accept a settlement that provides eligible Complainants who establish their entitlement both a substantial monetary recovery and significant employment benefits now. See Oppenlander v. Standard Oil Co., 64 F.R.D. 597, 624 (D.Colo.1974), where the court observed:

[T]he court should consider the vagaries of litigation and compare the significance of immediate recovery by way of compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In this respect, it has been held proper to take the bird in hand instead of a prospective flock in the bush. Id. at 624 (quotation omitted); see also Officers for Justice, 688 F.2d at 629 (failure by the court to accept the settlement could mean that "many of the immediate and tangible benefits accruing from the settlement would be lost").

IX. ANALYSIS OF THE OBJECTIONS IN THIS CASE

A. Insufficient Monetary Compensation

The vast majority of objections to the Settlement Agreement concern the monetary amount of the settlement. Some Objectors claim that the settlement amount does not adequately compensate for their damages incurred as a result of the Agency's alleged wrongful conduct, including actual losses, emotional distress, and loss of retirement benefits. The Objectors generally characterize the amount of potential monetary benefits as a pittance and some even referred to the settlement as "insulting."

Despite the objections, the Settlement Agreement cannot be evaluated based on what each Complainant might recover if he or she prevailed on the full amount of each alleged claim. "Objections based purely upon individual claims of loss do not warrant disapproval of the proposed settlement." McDonnell Douglas, 894 F.Supp. at 1335; EEOC v. Com. of Pa., 772 F.Supp. 217, 220 (M.D.Pa.1991), aff'd, 977 F.2d 738 (3rd Cir.1992). In analyzing the fairness issue, I must consider factors "beyond maximizing the potential benefit to an individual claimant." Binker v. Com. Of PA., 977 F.2d 738 (3^rd Cir. 1992). The criteria or methodology employed by the litigants is sufficient if its terms, when applied to the entire group of individuals represented, appear reasonable (emphasis added). McDonnell Douglas, 894 F.Supp. at 1335; see also E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986) ("the parties to a settlement will not be heard to complain that the relief is substantially less than what they would have received from a successful resolution after trial"). Indeed, the Administrative Judge is not required to engage in a de novo determination of whether the settlement provides each individual claimant with a satisfactory recovery, and the mere possibility that greater relief could be obtained if the case went forward to hearing is not a valid reason to object to the settlement. McDonnell Douglas, 894 F.Supp. at 1335;

The Objectors, while looking only at the amount that they themselves might recover, fail to recognize that thousands of others also may be eligible to recover. For example, if many of the 26,291 persons were denied promotions in 1992, the recovery could theoretically involve payment by the Agency of hundreds of millions of dollars to potential class members. This amount is certainly not a "pittance."

The Objectors also fail to take into account the potential for a decision in favor of the Agency. The settlement negotiated by the parties clearly must represent some compromise. The Agency vigorously disputed the claim and if Complainants did not prevail they would recover nothing. Even if the Complainants prevailed, Complainants would still face the risk that, in individual hearings, the Agency could substantially reduce their damages. Moreover, no Objector can persuasively argue that he/she would have without any doubt prevailed on his/her claim and achieved any better result than that negotiated under the terms of the Settlement Agreement. The reality is, had each person filed his or her own complaint, some would have prevailed and some lost, and many would have paid attorney's fees and costs.

Some Objectors complain that the Settlement Agreement provides no retirement enhancement. Contrary to the Objector's assertions, the Settlement Agreement may in fact enhance retirement pay for some employees. It is conceivable that the changes in Agency policy could make new opportunities available for many employees. Looking forward, this could positively impact employee retirement benefits. Similarly, some employees under the terms of the Settlement Agreement may be eligible for placement into new higher graded positions thus enhancing future retirement benefits.

The Settlement Agreement provides injunctive relief and nationwide changes to policies and procedures in addition to potential monetary payments. Monetary benefits are only a part of the Settlement Agreement. "A cash settlement amounts to only a fraction of the potential recovery will not per se render the settlement amount unreasonable." This is especially true when, as in this case, there is other relief in the settlement from which Complainants might benefit. Officers for Justice, 688 F.2d at 628; see also United States v. Allegheny‑Ludlum Industries, Inc., 517 F.2d 826, 864 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976) (settlement upheld; objectors did not make a "compelling showing" that average of $500 award was "nothing but a mere pittance"); Hiram Walker, 768 F.2d at 891 ("[t]here is no showing that the amounts received by the beneficiaries of the settlement were totally inadequate"). "It is the complete package taken as a whole, rather than the individual components, that must be examined for overall fairness." Officers for Justice, 688 F.2d at 628.

Finally, some Objectors assert that the settlement amount does not sufficiently penalize the Agency for violation of the Rehabilitation Act. These objections miss the point. The Commission has clearly stated,

it has long been the practice in both the private sector and the federal sector for employers and Agencies to enter into settlements that contain cash payments where there has been neither a finding of discrimination, either judicially or administratively, nor an admission by the employer or Agency of any wrongdoing. See MD-110 12-IV.

Settlement involves compromise. Moudlin v. SSA, EEOC Appeal No. 01A24054 (February 20, 2003), Settlement "save(s) the [parties] the time, and the inevitable risk of litigation." Armour, 402 U.S. at 681.

Since the case has not gone to hearing and the evidence has not been presented, it is not appropriate to conclude, and there is no basis to determine, that the Agency violated the Rehabilitation Act. The Agency vigorously disputes that any discrimination occurred and, as discussed above, the ultimate outcome of the litigation is in doubt due to a number of serious disputed issues of fact and law. The only appropriate issue for the Administrative Judge's consideration is the fairness of the settlement.

My review of the overall fairness of the settlement leads me to conclude that the monetary portion of the settlement is fair and reasonable and the objections as to the amount are without merit. The reasonableness of the monetary settlement is supported by the additional non‑monetary provisions of the settlement. Moreover, I specifically find that the monetary relief is not so "grossly inadequate" that it should be disapproved. See Branch v. Department of Veterans Affairs, EEOC Appeal No. 01902620 (November 7, 1990).

B. Other Claims, Issues and Time Frames

Some Objectors did not agree with the terms of the Settlement Agreement because it only addressed claims related to promotional and/or advancement opportunities.? Objectors variously complained that overtime, demotions, removals, terminations, and denial of accommodations were not included and therefore they argued the Settlement Agreement was not fair.

Regarding the issue of overtime, Complainants contend that they did attempt to add the overtime issue to the complaint. On March 9, 2002, class counsel filed a motion requesting that Edmond Walker be added as a co-class agent. After I advised the Agency and Complainants regarding the complications and delay to the Glover matter that adding Walker could entail, class counsel withdrew the request and instead chose to file a separate class complaint. The question regarding whether or not to certify the Edmond Walker complaint is presently pending before me.

Concerning the inclusion of other issues including demotion, removal, terminations, and denials of reasonable accommodations, none of these issues were part of any underlying complaint. Nor were these types of issues certified, part of the class definition, nor part of any of the underlying claims of the class agents.

The Objectors claim that the time frame of the defined class ought to have reached back to a time period before 1992. Clearly the time frame of the defined class is directly tied to the individual complaint of 1992. See 29.C.F.R. Section 1614.204(b).

In sum, I find no legally valid or supportable reason for including other issues that were not brought within the class definition or extending the matter to a time frame that was not part of the defined class. The Administrative Judge is simply not empowered to rewrite the agreement between the parties. The Administrative Judge's role at this juncture is limited to that of approving or disapproving the Settlement Agreement. Evans v. Jeff D., 475 U.S. 717 (1986); see also Manual for Complex Litigation Third, Section 30.42. I therefore find that the objections on these grounds do not merit a conclusion that the settlement is unfair.

C. Adequacy of Representation

The third category of objections deals with the adequacy of representation in this case. I find these objections that Complainants were not adequately represented to be wholly without merit. As I previously found above, class counsel vigorously prosecuted and devoted substantial resources to this case. I specifically find that class counsel intensely, zealously and adequately represented their clients throughout the proceedings against a vigorous and persistent adversary. I further find that any allegations of inadequacy and/or improprieties attributed by Objectors to class counsel are not supported by any evidence of record whatsoever. See Flournoy et al v. Okeefe, EEOC Appeal No. 01A24322 (December 18, 2002).

D. Fairness of Distribution-Burdens of Proof, No Opt Out Provisions and the Fairness of Class Agent Awards

Some Objectors argued that they ought to be afforded the opportunity to "opt out" of the process and proceed with their own already pending administrative EEO complaints. Despite the Objectors wishes, the Commission's regulations and EEOC Management Directive MD-110 Section 8(V)(D)8-7 do not allow for such opting out in the administrative process.

Another common theme of Objectors was that they ought to be afforded a guaranteed sum as part of the settlement instead of having to prove their claims under the terms of the Settlement Agreement. The parties have agreed to a specific framework for claims that are not settled and proceed to arbitration. (See Settlement Agreement Section VI.D(a-f). Under the terms of the Settlement Agreement the parties agreed to the following burdens of proof for claims involving the denial of promotion, detail or training:

1) the Arbitrator will presume that the Agency regarded the claimant as disabled unless the Agency proves by a preponderance of the evidence that it did not so regard the claimant; 2) claimants must prove by a preponderance of the evidence that they applied or were deterred from applying for a promotional or advancement opportunity because of disability that the person was qualified for and could perform the essential duties of with or without accommodation; and if claimant establishes these facts claimant will prevail unless the Agency proves by clear and convincing evidence that they would not have received the promotion, detail or training in the absence of their disability status. Id. Where the party asserts the existence of an actual disability the claimant must prove by a preponderance 1) that the claimant has an actual disability or record of disability 2) if disability status is established claimants must prove by a preponderance of the evidence that they applied or were deterred from applying for a promotional or advancement opportunity because of disability that the person was qualified for and could perform the essential duties of with or without accommodation; and 3)if claimant establishes these facts claimant will prevail unless the Agency proves by clear and convincing evidence that they would not have received the promotion in the absence of their disability status. Id.

For claims that involve a denial of an award the claimant must show that they were more qualified to receive the award or at least as qualified as the person who received the award and were denied the award because of disability. Id.

In addressing this issue, I first must point out while the Objectors focus on the arbitration phase of the Settlement Agreement process they ignore that many claims under the terms of the Settlement Agreement may be resolved by the parties through the settlement and mediation processes outlined in the agreement. While it is impossible to tell at this juncture how many such claims will be resolved it is safe to assume that some claimants will never be required to proceed through the formal proof processes about which Objectors complain. In fact, for many, the claims process and entitlement to receive compensation may involve merely filing the claim form.

Nevertheless, many claims will inevitably proceed through the arbitration process. A simple reading of the Settlement Agreement reveals terms of the Settlement Agreement relating to the burdens of proof that are clearly favorable to claimants. For example, claimants will have the benefit of the "regarded as" presumption and will also have the option of meeting their burden of having applied for a position by establishing only that they were "deterred from" applying for the position.

It is readily apparent from reviewing the terms of the Settlement Agreement that the parties attempted to strike a balance. The Agency was attempting to protect its interest in paying claims to only those that could establish that they were disabled and were denied promotional or advancement opportunities and/or awards. Class counsel on the other hand was attempting to negotiate the most favorable terms for the class members. The balance struck by the parties, as outlined above, represents the essence of compromise, an agreement that appears on its face to be fair, adequate and reasonable to the class as a whole.

Some mention should be made of the claims of the class representatives. Under the terms of the Settlement Agreement the co-class representatives are not guaranteed any relief. They stand in the very same shoes as any other claimant in this regard. The only distinction is that at arbitration they may argue for the payment of compensatory damages up to the statutory cap. Thus, the only difference is the enhanced potential of the class representatives to receive more compensatory damages. In Moudlin v. SSA, EEOC Appeal NO. 01A24054 (February 20, 2003), the Commission unequivocally approved a settlement with enhanced benefits to the class agents noting that "class agents were rewarded for their efforts to spearhead the claim." I find no unfairness to the class as a whole in similarly rewarding co-class agents with the mere "potential" to recover enhanced compensatory damages.

E. Deceased Workers

Some Objectors asserted that the Settlement Agreement should not be approved because it fails to provide for employees who could have been potential claimants but are deceased. These Objectors are mistaken in their understanding of the Settlement Agreement. The Settlement Agreement specifically provides for claims of deceased class members. (See Settlement Agreement Section VI.A.3. Moreover, as correctly noted by the Agency in its brief, "a federal sector EEO complaint survives the death of Complainant." (Agency Brief at p.29). See Estate of Ginter v. USPS, EEOC Appeal No. 01997239 (July 11, 2001).

In view of the fact that the Settlement Agreement makes special provisions for the claims of deceased individuals and the fact that the law is clear that such claims survive, there is nothing indicating that the Settlement Agreement as written is unfair to deceased individuals. On the contrary, I find that the parties have considered the question of deceased individuals and that such consideration is fair, adequate and reasonable.

F. Alleged Continuing Discrimination by the Agency

Some Objectors contend that the settlement should be rejected or should be reevaluated based on the fact that the Agency may be continuing to discriminate against persons on the basis of disability. I am not persuaded by these objections because upon final approval, the settlement agreement provides for injunctive relief, including the monitoring and cessation of policies and practices that might result in continuing discrimination. In view of these clear provisions contained within the Settlement Agreement, disapproval is not warranted.

X. CONCLUSION

After a detailed review and consideration of the terms of the Settlement Agreement, the briefs of the parties, the declarations provided, the objections filed thereto, and the factors to be considered in approving the fairness of such a settlement, I conclude that the proposed Settlement Agreement is fair, reasonable and adequate.? Accordingly, it is ORDERED that the Settlement Agreement is hereby APPROVED AND SHALL PURSUANT TO 29 C.F.R. SECTION 1614.204(G)(4) BIND ALL MEMBERS OF THE CLASS.

NOTICE TO BOTH PARTIES

This is an ORDER by an Equal Employment Opportunity Commission Administrative Judge issued pursuant to 29 C.F.R. 1614.204(g)(4). Pursuant to 29 C.F.R. Section 1614.401(c), 402 (a) an appeal to the Commission may be made directly from this Order. 29 C.F. R. Section 1614.401(c) provides in part:

A class member, a class Agent or an Agency may appeal a final decision on a petition pursuant to Section 1614.204(g)(4).

29 C.F.R. Section 1614.402 (a) provides in part:

Appeals described in Section 1614.401(a) and (c) must be filed within 30 days of the dismissal, final action or decision.

Further Information regarding the right to appeal and a copy of EEOC Form 573 is hereby attached to this decision. In the event, an appeal is filed, a copy of the Administrative Judge's decision should be attached to the appeal. A copy of any appeal shall be furnished to the Agency, and class counsel at the same time it is filed with the Commission, and should certify to the Commission the date and method by which such service was made on the Agency and class counsel.

All appeals to the Commission must be filed by mail, personal delivery or facsimile to the following address:

Director, Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 19848

Washington, D.C. 20036

Fax No. (202)663-7022

Facsimile transmissions over 10 pages will not be accepted.

Dated: JUNE 10, 2004 Dickie Montemayor

Administrative Judge