Mica B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 26, 2020

2020002485 (E.E.O.C. Aug. 26, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mica B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020002485 Hearing No. 480-2015-00578X Agency No. 4F-900-0364-08 DECISION On December 9, 2019, Complainant filed a Notice of Appeal with the Equal Employment Opportunity Commission (EEOC or Commission). Complainant attached documents related to the settlement of Deborah Cooper, et al. v. U.S. Postal Service, EEOC No. 480-2015-00578X, Agency No. 1F-901-0105-07 (Cooper).2 The record shows that, on October 25, 2019, an EEOC Administrative Judge (AJ) issued a Final Order Granting Approval of Settlement Agreement in Cooper. The Agency adopted the AJ’s final approval by final order dated November 8, 2019. Thus, we view Complainant’s appeal as a challenge, pursuant to 29 C.F.R. §1614.204(g)(4), to the AJ’s approval of the Cooper settlement agreement. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Cooper, et al. v. U.S. Postal Serv., EEOC Appeal No. 0720090043 (May 9, 2012) (finding that the AJ’s definition of the class and ultimate certification of the class complaint was supported by the record). 2020002485 2 BACKGROUND The Cooper class action giving rise to the settlement agreement at issue concerns discrimination by the Agency against injured employees in the Los Angeles District who were previously accommodated and subsequently denied work hours or instructed that there was no work available for them from approximately June 12, 2007 to March 20, 2015, in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The class was found to consist of approximately 348 current or former Agency employees. The record indicates that, on October 25, 2019, the AJ issued a Final Order Granting Approval of the Settlement Agreement in Cooper. The Agency issued its Notice of Final Action on Final Approval of the Settlement Agreement on November 8, 2019, agreeing to fully implement the settlement agreement. Under the terms of the settlement agreement, the total amount awarded to class members was $1,200,000.00.3 The class members are eligible for relief as members of one of four groups according to an allocation formula, which considers the date of the alleged harm and type of evidence verifying the alleged harm. Group 1, consisting of 186 class members with claims worth approximately $3,189.00 per person, covers claims that arose on or before the issuance of an October 29, 2007 memorandum from the L.A. District Manager (DM Memo). Group 2, consisting of 68 class members with claims worth approximately $1,161.00 per person, covers claims that arose after the DM Memo but before the implementation of the National Reassessment Program (NRP) in the L.A. District on March 20, 2009. Group 3, consisting of 46 class members with claims worth approximately $696.00 per person, covers claims that arose after the implementation of the NRP but before March 20, 2015, provided that the evidence submitted shows a claim other than harm caused by the NRP as alleged in McConnell v. U.S Postal Serv., EEOC No. 520-2010- 00280X (McConnell).4 Group 4, consisting of 48 class members with claims worth $271.00 per person, covers claims for which class members cannot clearly identify when they were initially sent home without pay, as evidenced by payroll codes 49, 59, and 60. The settlement agreement also provided for an award of $2,000.00 to a former class agent in recognition of her time commitment to participation in this matter. 3 Under the agreement, the class fund totals $1,200,000.00, including attorneys’ fees up to $200,000.00, attorneys’ costs up to $210,000.00, and class costs up to $70,000.00. 4 The McConnell class action concerns a class of the Agency’s rehabilitation and limited-duty employees whose positions were assessed by the Agency's National Reassessment Program (NRP) between May 5, 2006 and July 1, 2011. An EEOC AJ found that the NRP subjected qualified rehabilitation and limited-duty employees to disparate treatment which resulted in rehabilitation and limited-duty employees with disabilities having their reasonable accommodations withdrawn, as well as being subjected to disability-based harassment and having their confidential medical information accessed by unauthorized persons. EEOC Appeal Nos. 0720160006, 0720160007 (Sept. 25, 2017), req. for recons. den. EEOC Request Nos. 0520180094, 0520180095 (Mar. 9, 2018). 2020002485 3 Following the issuance of the Agency’s final order adopting the AJ’s approval of the global settlement agreement, Complainant filed the instant appeal. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. §1614.204(g)(4), notice of resolution shall be given to all class members in the same manner as notification of the acceptance of the class complaint and to the AJ. It shall state the relief, if any, to be granted by the agency and the name and address of the EEOC AJ assigned to the case. Id. Class members must petition the AJ to vacate the resolution within 30 days of the date of the notice of resolution if it benefits only the class agent, or is otherwise not fair, adequate and reasonable to the class as a whole. Id. Here, a Notice of Resolution was issued to the 348 class members and approximately 16,000 potential class members on August 27, 2019 with instructions on how to file objections to the settlement agreement and contest its fairness. The Notice of Resolution was also available at www.CooperClassSettlement.com. We note that in the AJ’s Final Order Granting Approval of Settlement Agreement, there is no indication that Complainant was among those 26 class members who filed an objection to the settlement agreement with the AJ. Failure to file a timely objection with the AJ under the process at 29 C.F.R. §1614.204(g)(4) is grounds to dismiss the instant appeal. Even if this appeal is considered, Complainant asserts no specific objections on appeal regarding the fairness, adequacy, or reasonableness of the settlement agreement to the class as a whole. In fact, Complainant failed to file a statement on appeal. Complainant raises no persuasive arguments that the compromises reached in this resolution were not fair, adequate and reasonable to the class as a whole. Therefore, we find that Complainant’s appeal is appropriate for dismissal. CONCLUSION Accordingly, Complainant’s appeal is denied and the Agency’s final action approving the global settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. 2020002485 4 Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020002485 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 26, 2020 Date