SUMMARY of COMPLAINANTS’ BRIEF IN SUPPORT OF REQUEST FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT

   Overtime Issue

 On March 9, 2002, class counsel filed a motion requesting that the Commission add Edmond Walker as a co-class agent in the Glover/Albrecht class action. Mr. Walker sought to add new issues to the class action. One of those issues included restricting permanent rehabilitation employee’s work hours, including overtime.  During a telephonic conference regarding adding Mr. Walker as a co-class agent, the Administrative Judge noted to the parties that if Mr. Walker was added as a class agent, the entire class would have to be re-noticed.  Class counsel withdrew, without prejudice, his request to add Mr. Walker as a co-class agent. However, class counsel and Mr. Walker did not abandon this issue.  On July 19, 2002 Mr. Walker filed a formal class complaint. Mr. Walker’s class complaint alleges that rehabilitation employees’ works hours are restricted in violation of the Rehabilitation Act of 1973, as amended. Mr. Walker’s allegations include the issue of denial of overtime to rehabilitation employee.  On  December 8, 2003, class counsel filed Complainant  Walker’s Motion Requesting Class Certification. Mr. Walker ’s request for class certification is presently pending a ruling by the Commission.

Other Claims and Issues.

 "With respect to the overtime issue, class counsel did attempt to add this issue to the lawsuit because it was raised by numerous class members in correspondence to class counsel. On March 9, 2002, class counsel filed a motion requesting that the Commission add Edmond Walker as a co-class agent in this case. Mr. Walker’s issues included restricting permanent rehabilitation employees’ work hours; including overtime. In considering this issue, the Administrative Judge noted to the parties that if Mr. Walker and his issues were added to the lawsuit the entire class would have to be renoticed. In light of the possible delay and the additional complexity of adding this issue, class counsel withdrew his request to add Mr. Walker as a co-class agent who raised the overtime issue. Class counsel did not abandon this issue. Instead, Mr. Walker filed a separate class complaint which includes the overtime issue. Mr. Walker’s request for class certification is presently pending a ruling by the Commission."

On December 3, 2003, Judge Montemayor issued his Preliminary Approval of the Settlement Agreement and Ordered the parties to transmit the Notice of Resolution of Class Action to class members.

 Transmission of the Class Notice

   On January 29, 2004, USPS transmitted to class counsel a CD ROM containing the names of 26,167 individuals on the master list.  On February 4, 2004, USPS confirmed to class counsel that the Claim Administrator had mailed the Notice of Resolution of Class Action to 26,176 potential class members.  On February 3, 2004, the parties set up a system to identify additional potential class members to be added to the master list. Class counsel has forwarded a number of additions to the list under this process. In February 2003, the parties reached an Agreement in Principle. However, negotiations continued until November 2003, in order to refine and clarify the terms of the Settlement Agreement. On November 20, 2003, the parties submitted the Settlement Agreement and exhibits thereto to Administrative Judge Montemayor for preliminary approval. On February 3, 2004, the Notice of Resolution of Class Action was mailed to 26,176 class members.  The Notice of Resolution was also posted on the Agency’s bulletin boards at over 14,000 facilities.38 The Settlement Agreement required that notice be posted on class counsel’s website.9 The parties also agreed to a process to continue to identify additional class members and added individuals to the class list. Pursuant to Commission regulation 29 C.F.R. 1614.204(g)(4), class members were given thirty (30) days to submit any objections to the terms of the proposed Settlement Agreement. At the end of the objection period, the Administrative Judge and parties approved seventy-nine (79) individuals as Objectors.
 

 The Administrative Judge issued an Order April 26, 2004, approving seventy-nine (79) individuals as objectors to the settlement agreement. This number represents less than [.3] percent of the class members eligible to file objections. Stated otherwise, 99.7 percent of the class did not object to the settlement agreement. Most of the 79 individuals who objected to the Settlement Agreement, provide no factual or legal basis to support their objections. To the contrary, an inference that the Settlement Agreement is fair, reasonable and adequate and should be granted final approval may be drawn by the absence of objections by the vast majority of class members.

 
On March 16, 2004, Administrative Judge Montemayor held a telephonic conference with the parties to discuss the issues to be briefed in written submissions to support requests for final approval of the settlement agreement. Judge Montemayor identified the following issues raised by objectors:
- amount of monetary compensation, including the fairness of distribution formula;
- failure to include other claims, (i.e. overtime, removal, demotion and retirement);
- burdens of proof;
- standing of objectors;
- denial of liability by USPS;
- allegations of continuing discrimination by USPS;
- objection to timeframe of the settlement agreement;
- failure to provide for deceased workers;
- recovery of class agents;
- class counsel fees and adequacy of representation.

The settlement should not be rejected “merely because individual class members complain that they would have received more had they prevailed at trial.” Modlin v. Barnhart, Commissioner, Social Security Administration, Appeal No. 01A24054, (February 20, 2003), quoting Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998). “Settlements inherently involve compromise from both parties; complainants should not expect the agency to provide the full relief to which they would be entitled if the claim was successful in trial. Further, the monetary relief provided, rather than promotions, is a reasonable compromise; it is not so ‘grossly inadequate’ that it should be disapproved.”

This case is already approximately 12 years old. With the Postal Service planning to down-size, and its future shape and viability unknown, there was a risk that remedies and resources for future resolution of this case might not be available.

If the matter went to trial and the complainants were successful, the Agency would be required to establish a claim process. Due to the size of this class and likely appeals, the duration of this case would likely consume many more years to conclusion. Delay of several more years would likely result in the loss of class members though death or inability to locate them.

The factual and legal basis for the case was hotly disputed by the Agency. The basic factual premise of the case—that the Agency had a practice or unwritten policy of denying advancement and promotion opportunities to the class—was not contained in any “smoking gun” memo or written document. In fact, the Agency offered a plausible explanation of the lower promotion rates of class members—the very impairments that rendered them disabled limited their interest and ability to be promoted.

The law relating to disability discrimination remains unsettled, and the recent trend of Supreme Court cases has been disquieting for employees with disabilities. USPS argued strenuously that a) most class members likely did not have actual disabilities, b) that any class process to determine whether such disabilities existed would be unmanageable, c) would lead to a much reduced class. Class counsel’s attempt to avoid this line of attack, i.e. the use of the “regarded as” prong of the disability definition, is largely untested in the law and depends on proof of the unwritten policy it asserts existed at the Agency.

Amount of Damages.
As explained above and in the Seligman , the amount of back pay and damages for claims was based on an evaluation of actual losses of class members, awards in other cases, and the risks of this litigation. Individual awards for denial of promotions (for union employees) could be more than $25,000.92 With respect to those individuals who object generally because of insufficient monetary amounts, the Commission has held that this is an insufficient basis upon which to set aside a class action settlement.

USPS’s Refusal To Admit Liability.
A settlement agreement is a contract between the parties; the parties are free to negotiate the terms. Mitchell, et al., v. Glickman, supra. The Administrative Judge can take judicial notice that in settlement agreements, denial of liability is a standard provision which in no way implicates the substantive rights of class members. Thus, the fact that USPS has refused to admit any liability provides no basis for setting aside this settlement agreement.

Continuing Discrimination.
Upon final approval, the settlement provides for injunctive relief and monitoring, and the cessation of policies and practices that might result in continuing discrimination.

Deceased workers.
Contrary to the objection, the settlement explicitly provides for claims for deceased class members.

CONCLUSION
This agreement is a paradigm for future disability class action settlements and satisfies the primary concerns addressed under Rule 23(e) and EEOC decisions: the protection of the rights of class members. More than ninety-nine (99.7%) percent of class members in this case chose not to object to the settlement agreement.

Finally, the Commission, in its consideration of this agreement, is entitled to rely upon the opinion and experience of class counsel. See, Reed v. General Motors Corp, supra. The lead negotiator, Mr. Seligman opined as follows:
“The proposed settlement thus gives class members the same, or even better, presumptions they would have
been entitled to had the class prevailed at the liability hearing. Moreover, it offers class members a free, stream-lined process for preparing and presenting their claims.”  “Given the risk of further litigation, and the clear benefits of the proposed settlement, class counsel believes the settlement should be approved.”

Wherefore, class counsel moves the Commission to grant Final Approval to the Glover/Albrecht class action settlement agreement.

 

 4th day of May 2004, I served a copy by placing same postage prepaid in the U.S. mail addressed to:

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Complainant's Final Approval Brief