01a44445
05-04-2005
Yvonne May, and Robert L. Perry Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yvonne May and Robert L. Perry v. United States Postal Service
01A44445 and 01A44564
May 4, 2005
.
Yvonne May, and Robert L. Perry
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A44445 and 01A44564
Agency No. CC-801-0015-99
Hearing No. 320-A2-8011X
DECISION
Complainants each filed a petition with an EEOC Administrative Judge to
vacate the proposed settlement agreement reached in the class complaint
titled Chandler Glover and Dean Albrecht, et al. v. John E. Potter,
Postmaster General, United States Postal Service, EEOC No. 320-A2-8011X;
Agency No. CC-801-0015-99. On June 10, 2004, the Administrative Judge
issued a Notice of Final Approval of the Settlement Agreement Pursuant
to 29 C. F.R. � 1614.204(g)(4) which effectively denied petitioner's
petition. Subsequently, complainants timely filed the instant appeals
which the Commission accepts pursuant to 29 C.F.R. � 1614.401(c).
See also EEOC Management Directive 110, Chapter 8 at 8-10 (November
9, 1999). For the reasons that follow, we AFFIRM the Administrative
Judge's decision to approve the settlement agreement.
BACKGROUND
The resolution giving rise to this appeal concerns the settlement of
claims brought by:
those persons employed by the agency throughout 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.
See Order Approving Settlement Agreement at � V (June 10, 2004)
(hereinafter �Order�). In February 2002, after years of investigation,
the parties entered into initial discussions regarding settlement.
Order at � III. In June 2003, after agency officials granted full
authorization to proceed with settlement, the parties engaged in
comprehensive negotiations to �hammer out� the terms of the settlement
agreement. Id. A final agreement was signed by the parties on December
3, 2003, and the Administrative Judge issued an order granting preliminary
approval of the settlement. Id.
Under the terms of the settlement agreement (see generally Order at
� VI), class members are eligible for individual relief through a
four phase claims process. During phase one of the claims process,
all potential class members are required to submit timely claim forms.
During phase two, the parties will exchange extensive discovery on the
timely claims of those determined to be class members. In phase three,
if both sides agree, individual claims will be mediated. All claims
that are not settled or dismissed would then proceed to arbitration
in phase four where the burdens of proof would reflect a compromise
between the burdens of proof set forth under 29 C.F.R. � 1614.204(l) -
where a finding of discrimination against a class has been made - and
the burdens of proof in individual hearings. A class member can only
receive individual relief if the individual's claim is settled or the
individual wins at arbitration.
In terms of monetary compensation, the parties agreed to a fixed amount
of damages for promotional opportunities defined as assignments, details,
awards, and formal training. For advancement opportunity, defined as
vertical movement from a lower level position and/or pay within the
USPS system to a position at a higher level grade or pay, the parties
agreed to a fixed amount of compensatory damages for all claimants
(except for the class agents as discussed infra) depending upon the
year of the denial. Claimants will also receive a fixed amount of back
pay for common advancements and actual back pay for other positions.
In addition, if an individual was denied advancement to an EAS or letter
carrier position, the individual may be awarded placement. The damages
are capped per class member at: (a) one advancement opportunity, one
detail and one award or training opportunity; or (b) any combination of
two promotional opportunities. No individual can recover for more than
one advancement opportunity.
Class members are also entitled to class-wide injunctive relief.
The agency agreed not to deny opportunities to permanent rehabilitation
employees, to review and revise several employment policies and to
provide additional training on the Rehabilitation Act, and to set up a
program whereby permanent rehabilitation employees may state comments
and concerns about promotional and advancement opportunities outside
the EEO process. Furthermore, class counsel will monitor the agency's
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. Finally, the settlement agreement also provides
for the payment of attorney's fees and costs and for legal representation
without cost to class members throughout the claims process.
In accordance with Commission regulations, notice, in writing, of the
agreement's terms was given to all potential class members who were also
notified of the requirement to submit objections to the Administrative
Judge within thirty calendar days. Seventy-nine objections were received
and accepted as timely. Class counsel and agency counsel thereafter filed
briefs in support of the settlement agreement, and sworn declarations
from class counsel and a third party mediator were also provided to the
Administrative Judge.
In his June 10, 2004 Order, the Administrative Judge noted that the
fairness of settlements is generally analyzed in federal civil claims
pursuant to Federal Rule of Civil Procedure (FRCP) 23(e). Order at � VII.
Although this rule does not technically apply to EEOC administrative
proceedings, the Commission has held that the standards enunciated in FRCP
23(e) should be followed. See Modlin v. Social Security Administration,
EEOC Appeal No. 01A24054 (February 20, 2003). In applying this standard,
the Administrative Judge addressed: (1) whether the proposed settlement
was fairly and honestly negotiated - he concluded that it was; (2)
whether serious questions of law and fact exist that place the outcome
of the litigation in doubt - he concluded that there were; (3) whether
the value of an immediate recovery outweighs the mere possibility of
future relief after protracted and expensive litigation - he concluded
that it did; and (4) the judgment of the parties and their counsel
that the settlement is fair and reasonable - he found their judgment
worthy of deference. In addition, the Administrative Judge addressed:
(1) the protection of class members whose rights may not have been given
adequate consideration during the settlement negotiations - he found no
evidence of this; (2) the risk of establishing damages at hearing - he
found the balancing of these risks to be fair, adequate and reasonable;
(3) the extent of discovery and the current posture of the case - he found
the settlement to be the result of an informed and carefully considered
decision by both parties; and (4) the range of possible settlement -
he found that it was prudent to accept a resolution that provides for
claimants who establish entitlement to receive substantial monetary
relief and significant employment benefits sooner rather than years after
protracted litigation. Order at � VIII.<1> Then the Administrative
Judge turned his attention to an analysis of the objections raised.
By far the majority of the objections filed concerned monetary
compensation. The Administrative Judge concluded that the objections
were without merit. In reaching this conclusion, the Administrative
Judge noted that the objectors, who represented .3% of the potential class
members, failed to appreciate: (1) the amount of money that thousands of
others might be eligible to recover; (2) the potential for a decision
in the agency's favor; (3) the retirement pay enhancement that might
be available to some employees; and (4) the fact that the agreement
also provides injunctive relief and nationwide changes to policies and
procedures. Order at � IX at A. The Administrative Judge concluded
that the reasonableness of the monetary settlement was supported by the
additional non-monetary provisions of the settlement and that the monetary
relief was not so �grossly inadequate� that it should be disapproved. Id.
Furthermore, in regard to objections concerning issues that were not
brought within the class definition, (i.e. overtime, demotion, removal)
and extending the matter to a time frame that was not part of the defined
class, the Administrative Judge found that there were no legally valid or
supportable reasons for entertaining those objections. The Administrative
Judge noted that it was not his position to rewrite the settlement but
only to approve or disapprove it based on the applicable standards.
Order at � IX at B.
The Administrative Judge found the objections to the adequacy of
representation to be wholly without merit. He found there to be no
evidence of record �whatsoever� to support the allegations of inadequacy
or impropriety attributed by some of the Objectors to class counsel.
The Administrative Judge concluded that class counsel �intensely,
zealously and adequately represented their clients throughout the
proceedings against a vigorous and persistent adversary.� Order at �
IX at C.
The Administrative Judge also addressed the fairness of the
�distribution-burdens of proof, no �opt out� provisions and the fairness
of class agent awards. Some objectors argued that they should be allowed
to �opt out� and proceed with their own already pending administrative
EEO complaints. The Administrative Judge noted that the Commission's
regulations do not provide for �opting out.� Concerning the fairness on
the issue of �distribution-burdens of proof,� the Administrative Judge
first pointed out that it was most likely that many of the claims for
relief would be resolved through the settlement and mediation processes
outlined in the agreement and many class members need do no more than
fill out a claim form. However, he noted that some of the claims would
inevitably proceed to arbitration at which point the burdens of proof
would come into play. The Administrative Judge found, in fact, that a
simple reading of the settlement agreement reveals that the burdens of
proof are in claimants' favor and that they represented the parties'
efforts to strike an appropriate balance between the agency's interest
in paying claims only to those able to prove that they were disabled
and denied promotional and/or advancement opportunities, and class
counsel's interest in negotiating the most favorable terms for class
members. The Administrative Judge concluded that the balance struck
by the parties represented the essence of compromise and appeared on
its face to be fair, adequate and reasonable to the class as a whole.
The Administrative Judge also addressed the relief due to the two class
agents. The Administrative Judge noted that the class agents stood
in the very same shoes as any other claimant, with one exception - if
their claims proceeded to arbitration they could argue for the payment
of compensatory damages up to the statutory cap - thus the only benefit
granted to the class agents for �spearheading the claim� was the enhanced
potential to receive more damages. Order at � IX at D.
Addressing the concern that the settlement agreement did not provide for
employees who could have been potential claimants but are deceased, the
Administrative Judge found that the agreement specifically provided for,
and fairly considered the interests of, deceased claimants. Order at �
IX at E. The Administrative Judge also found that objections concerning
the agency's continuing to discriminate on the basis of disability did
not warrant disapproval of the settlement agreement in light of the
provisions for injunctive relief, including the monitoring and cessation
of policies and practices that might result in continuing discrimination.
Order at � IX at F.
Turning to the issue of attorney's fees, the Administrative Judge
noted that the fees had been divided into two phases. He found that
the amount of fees negotiated for representation leading up to the
settlement actually represented a discount from the total lodestar for
which class counsel could have sought recovery and was reasonable under
the circumstances of the case. The Administrative Judge further concluded
that the post-settlement fee agreement, providing that the agency would
pay a negotiated amount per claim, mediation and arbitration, thereby
providing claimants with free legal representation was a substantial
benefit to the class. In conclusion, he found the attorney's fees
provisions to be fair, adequate and reasonable. Order at � IX at
G. Finally, the Administrative Judge found that the settlement agreement
provides valuable conservation of both public and private resources when
compared to the costs that would have escalated if the case continued
for an unknowable time frame, and thus public policy considerations
strongly favored the approval of the agreement. Order at � IX at H.
ANALYSIS and FINDINGS
We review an Administrative Judge's decision to approve a class action
settlement under an abuse of discretion standard. See Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). In adopting the abuse of
discretion standard for reviewing an Administrative Judge's approval
of a resolution under 29 C.F.R. � 1614.204, we recognize �that the
decision to approve or reject a settlement is committed to the sound
discretion of the trial judge because he is exposed to the litigants,
and their strategies, positions and proof.� Id.
Complainant Yvonne May
On appeal, complainant did not submit a copy of the petition she filed
before the Administrative Judge nor any argument in support of what we
presume is her request that we vacate the resolution. In fact, all she
submitted was a copy of the Administrative Judge 's Order.
Complainant Robert L. Perry
On appeal, the agency submitted a copy of the objection complainant
submitted to the Administrative Judge in which he claims that because
of his injury, he was not allowed to bid on either schedules or jobs
and further that he was transferred from the carrier craft to the clerk
craft where he dropped from a Level 6 to a Level 5 clerk and lost all of
his seniority. Complainant states that �truly they could never pay me
for the money I lost because of my injury,� and concludes that because
his bid rights were taken away from him, he believes the settlement
should be of greater value. In his own statement to the Commission on
appeal, complainant states that the agency �has admitted their error in
handling me, due to my disability. They placed me back to a Level 6,
and also gave me back my seniority, which they never should have taken.�
Upon review and based upon the findings articulately and persuasively
set forth in his Order, we conclude that the Administrative Judge
did not abuse his discretion when he concluded that the settlement
agreement was fair, adequate and reasonable to the class as a whole.
Although we are unsure as to which aspect(s) of the resolution complainant
May specifically takes issue, we note that a settlement necessitates
compromise, and complainant May presents no persuasive argument that the
compromises reached in this resolution are not reasonable. Concerning
complainant Perry, we find that his claim that the settlement agreement
should be of greater value does not involve the fairness of the settlement
to the class as a whole but rather concerns the additional individual
relief to which he believes he should be entitled due to the loss of his
bidding rights. We conclude that this claim is not sufficient to reject
the overall fairness of the settlement. See Thomas v. Albright, 139 F.3d
227, 232 (D.C. Cir. 1998). We therefore AFFIRM the Administrative Judge's
June 10, 2004 approval of the resolution settling the class complaint
titled Chandler Glover and Dean Albrecht, et al. v. John E. Potter,
Postmaster General, United States Postal Service, EEOC No. 320-A2-8011X;
Agency No. CC-801-0015-99. Complainants' appeals are hereby DENIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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.
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
May 4, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant; Administrative Judge Dickie
Montemayor; John Mosby, Esquire; and the agency, c/o Kevin Calamoneri,
Esquire on:
__________________ ______________________________
Date 1 There appears to be a typographical error in the Order's
numbering. The citation to � VIII corrects that error.