Postal Manager Can Pursue Discrimination Lawsuit Under Equal Pay Act
Female Postal Manager also claims she earned a pay-scale level that does not offer annual leave carry-over, paid life insurance, fully paid health insurance or survivor benefits.
A Native American woman can amend her discrimination complaint against the United States Postal Service over claims that the company paid a higher salary to a man with similar job duties, the U.S. Court of Federal Claims ruled. Beverly Martin started working for USPS in 1981, and over the years worked her way up the ranks to become program manger. From 2004 until 2008 Martin headed the office’s National Performance Assessment program in the Field Operations Requirements and Planning division. In March of 2008 USPS promoted a co-worker named Thomas Henry to division manager, a position for which Martin had also applied. She filed a discrimination complaint with the Equal Opportunity Commission because she believes that Henry was hired based on his gender. Martin says that although she practically shared the same job responsibilities as Henry, he was paid more by USPS.”Plaintiff alleges that, because of Mr. Henry’s gender, he received greater compensation for performing job duties substantially similar to those that Plaintiff performed,” the ruling, filed Jan. 26 states.
Here’s some other legal information on the case:
On January 26, 2011 Judge Mary Ellen Coster Williams of the U.S. Court of Federal Claims rejected USPS’’ motion to dismiss postal manager Beverly Martin’s pay discrimination claim. Judge Williams’ decision rejected USPS’s argument that the recent Supreme Court “Iqbal and Twombly” decisions effectively required Ms. Martin to prove her Equal Pay Act case outright in order to survive a motion to dismiss. In particular, Judge Williams held that Ms. Martin properly alleged that the actual job duties she and the male comparator performed in their respective positions, and not their formal job titles, controlled whether or not they could be compared for pay discrimination analysis. Judge Williams also ruled that the fact that the male comparator did the job after Ms. Martin was no bar to Ms. Martin’s Equal Pay Act claims.
Here ares excerpts from her complaint filed February 11, 2011:
Plaintiff Beverly A. Martin has worked for the U.S. Postal Service since January 1981, in a variety of positions of increasing responsibility and compensation levels.
Beginning November, 2004, until March 28, 2008, Ms. Martin held the position of Program Manager for the National Performance Assessment (“NPA”) program in the Field Operations Requirements and Planning (“FORP”) division at USPS. Ms. Martin’s position was ranked as an “EAS 25,” and beginning 2004 she was paid a salary of $80,902 as set out in USPS schedules for managers at that level. Her annual pay for the NPA program manager position was $89,194 in 2004-2005; $98,336 in 2006; and $103,207 in 2007.
From November 2004 until July 2005, Ms. Martin also held the temporary position of Acting Manager, FORP, on a “detail,” but at the same, lower compensation level of an EAS-25. Ms. Martin’s duties as Acting Manager, FORP encompassed oversight responsibility for six to 14 different programs in FORP, only one of which was the NPA program. Ms. Martin’s responsibilities as Acting Manager also included oversight of the NPA Program Manager, and supervision of several other staff working on thirteen (13) other programs.
Ms. Naoma Bourdon, also female, served as Manager, FORP from July, 2005 until February 29, 2008. Ms. Bourdon was Ms. Martin’s first line supervisor during that time, except
during Ms. Martin’s eight month tenure as Acting Manager. Ms. Bourdon’s duties as Manager, FORP encompassed oversight responsibility for six to 14 different programs in FORP, only one of which was the NPA program. Ms. Bourdon retired from the position effective February 29, 2008. On information and belief, Ms. Bourdon was paid at the PCES-1 level throughout her tenure as Manager, FORP.
The USPS named Mr. Thomas Henry, a white Male, as Acting Manager, FORP, effective March 1, 2008. Ms. Martin does not have knowledge of Mr. Henry’s annual pay during his four month tenure as Acting Manager, FORP.
The USPS named Mr. Henry Manager, FORP, on July 5, 2008. Ms. Martin also applied for the position, but was not selected. Ms. Martin filed a formal EEO complaint of discrimination against the USPS based on her non-selection on or about October 6, 2008.
Ms. Martin continued to serve as NPA Program Manager during Mr. Henry’s first month as acting Manager, FORP. Her last day as NPA Program Manager was March 28, 2008. Her last rate of pay as NPA Program Manager in 2008 at the EAS-25 scale was $105,088.00. Her previous annual pay for the NPA Program Manager was $89,194 in 2004-2005; $98,336 in 2006; and $103,207 in 2007.
Identical Duties
Ms. Martin’s duties as the NPA program manager from 2004-2008 were detailed in her annual statement of “goals” included in her annual performance evaluations. Ms. Martin had complete management and oversight of the NPA program including officer briefings; planning, development, and implementation; oversight of NPA staff and contractors; and hiring and performance reviews of NPA staff.
Mr. Henry’s 2008 new goals, both as Acting and as Executive Manager, FORP, were nearly identical to, or encompassed fewer responsibilities than, the goals and duties set out for Ms. Martin as Program Manager for the NPA program between 2005 and 2008. In particular, Mr. Henry’s new goals as Manager, FORP show that his main and only responsibility as Manager, FORP was management and oversight of the NPA program. Ms. Martin’s main responsibility as Program Manager for the NPA program from 2004 to 2008 was also the management and oversight of the NPA program.
Pay Disparity
Beginning July 25, 2008, and continuing to the present, although Mr. Henry’s duties as Manager, FORP, were far fewer than Ms. Bourdon’s had encompassed, and essentially identical to Ms. Martin’s duties as NPA program manager, USPS compensated Mr. Henry at the higher-ranked and better paid PCES-1 level. As of July 25, 2008, Mr. Henry’s PCES-1 salary was $115, 596.80.
Mr. Henry held the position of Manager, FORP, from July 25, 2008 through July, 2010, when he was selected for another USPS managerial position. As of July 25, 2008, Mr. Henry’s PCES-1 salary was $115,596.80, or more than $10,000 per year higher than Ms. Martin’s last annual pay as NPA program manager. In addition, as a PCES-1, Mr. Henry was eligible for benefits including 128 additional hours annual leave carry-over; fully paid life insurance; fully paid health insurance; and survivor benefits, all of which are estimated to increase the value of his compensation package to $129,327.18.
As further detailed in 17 through 20, below, Ms. Martin’s received a discriminatory, lower salary as an EAS-25 Program manager for doing PCES-1 work beginning 2004, when she was paid an annual salary of $89,194. The pay discrimination continued through 2006 ($98,336); 2007 ($103,027), and 2008 ($105,088). In addition, Ms. Martin’s EAS-25 level compensation package from 2004 through 2008 did not include the additional PCES-1 benefits enumerated in paragraph 15; including the annual leave carry-over; paid life insurance; fully paid health insurance; or survivor benefits. Ms. Martin therefore seeks back pay in an amount more than $10,000.
The USPS’s pay discrimination cost Ms. Martin $31,716 in 2005. Ms. Martin’s 2005 annual pay at the lower EAS-25 level was $89,194.
The USPS’s pay discrimination cost Ms. Martin $34,093 in 2006. Ms. Martin’s 2006 annual pay at the lower EAS-25 level was $98,336.
The USPS’s pay discrimination cost Ms. Martin $37,203 in 2007. Ms. Martin’s 2007 annual pay at the lower EAS-25 level was $103,207.
The USPS’s pay discrimination cost Ms. Martin $48,670 in 2008. Ms. Martin’s 2008 annual pay at the lower EAS-25 level was $105,088.
Ms. Martin also seeks the additional value of the 5% Thrift savings match which she would have received had she been compensated at the PCES-1 level. Ms. Martin is covered by the FERS retirement system and contributed the maximum allowed each year from 2004 through 2008. USPS contributed the 5% match to Ms. Martin’s Thrift savings plan in each of those years.
New EEOC Regulations Protects Employees From Discrimination based On Genetic Info
The Equal Employment Opportunity Commission has issued final regulations that implement the Genetic Information Nondiscrimination Act of 2008. The law protects job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information.
Genetic monitoring.–The term “genetic monitoring” means the periodic examination of employees to evaluate acquired modifications to their genetic material, such as chromosomal damage or evidence of increased occurrence of mutations, that may have developed in the course of employment due to exposure to toxic substances in the workplace, in order to identify, evaluate, and respond to the effects of or control adverse environmental exposures in the workplace.
(6) Genetic services.–The term “genetic services” means–
(A) a genetic test;
(B) genetic counseling (including obtaining, interpreting, or assessing genetic information); or
(C) genetic education.
(7) Genetic test.–
(A) In general.–The term “genetic test” means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.
(B) Exceptions.–The term “genetic test” does not mean an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes.
SEC. 202. EMPLOYER PRACTICES.
(a) Discrimination Based on Genetic Information.–It shall be an unlawful employment practice for an employer–(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.
(b) Acquisition of Genetic Information.–It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except–
(1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee;
(2) where–
(A) health or genetic services are offered by the employer, including such services offered as part of a wellness program;
(B) the employee provides prior, knowing, voluntary, and written authorization;
(C) only the employee (or family member if the family member is receiving genetic services) and the licensed health care professional or board certified genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services; and
(D) any individually identifiable genetic information provided under subparagraph (C) in connection with the services provided under subparagraph (A) is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees;
(3) where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State family and medical leave laws;
(4) where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
http://federalregister.gov/a/2010-28011
FYI: National Reassessment Process EEO Class Action Lawsuit Website
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973.
The EEO class action charges:
- The NRP fails to provide class members with reasonable accommodations
- The NRP wrongfully discloses the medical information of class members
- The NRP creates a hostile workplace environment for class members
- The NRP has an adverse impact on class members.
The attorneys for Sandra McConnell ..et.al created a website to answer all questions postal employees may have regarding this case. At this website you can find the following:
Background
NRP Class Action: Representing Workers Affected by the USPS National Reassessment Process
McConnell v. U.S. Postal Service, EEOC Case No. 520-2008-00053X
Fill Out the NRP Class Action Questionnaire
The U.S. Postal Service is rolling out the National Reassessment Process (NRP) in USPS districts across nation. The NRP reviews all injured-on-duty employees serving in limited duty and/or rehabilitation positions.
In 2006, Sandra McConnell was reviewed under the NRP in the USPS Western New York District. Ms. McConnell had been working in a rehabilitation modified carrier position for over eight years. However, after the NRP review, Ms. McConnell was stripped of her modified position and ordered to go home with “no work available.”
Ms. McConnell filed a class action discrimination complaint under the Rehabilitation Act on behalf of all USPS workers affected by the NRP. The disability discrimination class action was certified by the EEOC Administrative Judge in 2008. After the USPS appealed that decision, the EEOC again granted certification of the class action in 2010. To view the class certification
notice click here.
What You Should Do
If you are affected by the NRP, you should do the following:
Fill out the NRP Class Action Questionnaire by clicking here
With respect to the claims covered in the class definition, you do not need to do anything now to preserve your right to make a claim later. If you have any claims that may not be covered by the class definition, these claims must be processed by you with an EEO Counselor within 45 days of the action complained of.
Current Status of the Case
The class action was remanded to the EEOC Administrative Judge. The parties are engaging in discovery. After the discovery process is completed, the Administrative Judge will set a date for trial.
Check for updates on the case status here.
Fill Out the NRP Class Action Questionnaire
National Reassessment Process website
Acting Postal Supervisor Terminated For Falsifying Timecard But Not His Female Boss
Charles Wilcher, a 204B (acting)supervisor from the letter carrier craft, claimed he was “working” on July 5, 2006 when he spent the day with his Postmaster [Margie Flores-Jones]. She was also accused of getting paid for July 5, 2006 even though it was alleged that she did not actually work that day. She was initially demoted to the position of Supervisor of Customer Service, but was subsequently returned to her position as Vineland Postmaster. Eight months after the incident he was issued a Notice of Removal. After a grievance filed by his union, a three-day arbitration hearing and two formal complaints filed with the EEOC, his removal was upheld. His complaint of unlawful discrimination based on his race and gender was dismissed.
CHARLES WILCHER, Plaintiff,
v.
JOHN E. POTTER, Postmaster General, and UNITED STATES POSTAL SERVICE, Defendants.
Civil Action No. 08-2723
United States District Court, D. New Jersey.
June 18, 2010
BACKGROUND
In September 2000, plaintiff, Charles Wilcher, became a “craft” employee of the United States Postal Service. He first served as a letter carrier, but in July 2006, he became a 204B acting supervisor of the Vineland Delivery and Distribution Center. As a 204B supervisor, plaintiff retained his craft status, but he performed duties of a first-level supervisor.
On March 16, 2007, plaintiff was issued a Notice of Removal, which terminated his employment with the USPS. The Notice of Removal charged plaintiff with improper conduct for being paid for eight hours on July 5, 2006 even though he had not reported for duty that day. Through two formal complaints filed with the EEOC, a grievance filed by his union, and a three-day arbitration hearing, plaintiff challenged the basis for removal by maintaining that he did work on July 5, 2006. Plaintiff explained that he did not perform his supervisor duties that day on the floor, but rather spent the entire day filing with the Vineland Postmaster in her office, behind closed doors or otherwise in an area where other USPS employees could not see him.
An Office of Inspector General investigation ensued into plaintiff’s explanation, and the arbitrator and plaintiff’s supervisors all determined it to be without merit, thus leading to plaintiff’s discharge. Plaintiff, however, insists that he worked on that date, and claims that the USPS terminated his employment because is a black male. As a result, plaintiff filed this action against the USPS for unlawful discrimination based on his race and gender.
USPS Blanket Policy To Challenge Postal Employees With Too Much FMLA Leave??
This a quite a lengthy case so I will try to summarize it with key points:
The Postal Service was found to have unlawfully discriminated against Michigan Letter Carrier Barbara Passage on the basis of disability, sex, retaliation for EEO activity in the terms and condition of her employment. Additionally,USPS managers/supervisors failed to reasonably accomodate Passage under the Rehabilitation Act. EEOC ruled that USPS failed to show it could accomodating her would cause a hardship.
The claims raised by Passage:
On June 22, 2007, her FMLA was denied;
On July 9, 2007,she was issued a letter of warning;
On July 18, 2007, she was issued a 7-Day Suspension;
On August 4, 2007, she was harassed and her 3996 was disapproved;
On August 7, 2007, she was harassed about her field and office time and her 3996 and 1571 disapproved;
On Septmeber 11, 2007, she was issued a letter of warning;
On or about November 20,2007, her attendance records was illegally changed, her FMLA hours were “exhausted and her FMLA protection terminted;
On December 11, 2007, she was given a pre-discplinary interview;
On December 26,2007, she received a letter of warning charging her with Irregular Attendance;
On or about January 16,2008, she was denied FMLA
The Postal Service’s Associate Area Medical Director retaliated against Passage for EEO activity under the Rehabiliation Act in providing instructions to the FMLA Coordinator for the purpose of denying her FMLA coverage. The Area Medical Director also provided instructions as to treatment of Passage regarding her leave request and medical certifications.
USPS manager/supervisors also retaliated against Passage for EEO activity; not providing her with assistance in delivering mail and by disciplining her for returning from route with undelivered mail when they did not do so for a male employee.
The USPS Area Medical Doctor contacted Passage’s doctor after receiving her FMLA certification in 2007. The USPS doctor told her doctor that the requested time off was too much and it could not be approved. She also inquired whether the Passage was a malinerer and honest. Passage’s doctor explained that Passage was not a malinerer but suffered from a condition that required time off. Since the Area Medical doctor told Passage’s doctor that she would not get the requested time off, he changed the medical certification to what the Area Doctor suggested.
During the hearing the FMLA Coordinator for USPS, Michigan District admitted that the “Agency policy is to challenge any certification for absences that allow an employee to take off work a great deal.” The EEOC administrative judge wrote,” This policy shows that the Agency is not complying with the Rehabilitiation Act because it is not accessing each employee’s need for absences on an individualized basis but simply challenges all requests for absences that it feels are general too many.
EEO set the remedy for this discrimination should be in part is to pay passage $50,000 in compensatory damages and separate attorney costs/fees.
This case is not settled as USPS was expected to challenge this decision.
Update: EEO Class Action For Postal Employees Placed Under National Reassessment Process
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to
employees who had an approved compensable injury as determined by the Department of Labor.
According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
Class members argued one or more of the following complaints:
1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination.
The Postal Service filed an appeal from the certification decision.
Recently EEOC agreed with the AJ’s determination that the class should be defined as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP since 2006. Therefore, the EEOC reversed the Postal Service’s order rejecting the class and ordered them to notify potential class members.
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EEOC Proposes Broader Definition of Disability
The Equal Employment Opportunity Commission (EEOC) issued a Federal Register Notice proposing to revise its Americans with Disability Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008, Pub. L. No. 110?325. Comments on the proposed regulations, 74 Fed. Reg. 48431-48450, are due no later than November 23, 2009. The EEOC described the nature of the revised regulations as follows:
Pursuant to the 2008 amendments, the definition of disability under the ADA, 42 U.S.C. 12101, et seq., shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA as amended, and the determination of whether an individual has a disability should not demand extensive analysis. The Amendments Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. . . . .
The Amendments Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways, therefore necessitating revision of the existing regulations and interpretive guidance contained in the accompanying “Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act,” which are published at 29 CFR part 1630.
Consistent with the provisions of the Amendments Act and Congress’s expressed expectation therein, the proposed rule:
—Provides that the definition of “disability” shall be interpreted broadly;
—Revises that portion of the regulations defining the term “substantially limits” as directed in the Amendments Act by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and by deleting reference to the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s clear instruction that “substantially limits” is not to be misconstrued to require the “level of limitation, and the intensity of focus” applied by the Supreme Court in Toyota Motor Mfg., Ky v. Williams, 534 U.S. 134 [sic: correct citation is 534 U.S. 184] (2002) (2008 Senate Managers’ Statement at 6);
—Expands the definition of “major life activities” through two nonexhaustive lists:
—The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the Amendments Act;
—The second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the Amendments Act, and some of which have been added by the Commission as further illustrative examples;
—Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
—Provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
—Provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor;
—The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment, and the Commission invites public comment on this point;
—Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and,
—Provides that qualification standards,employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.
EEOC 2009 Annual Report On USPS Workforce
From United States Equal Employment Opportunity Commission (EEOC):
“This report covers the period from October 1, 2007, through September 30, 2008. The September 30 snapshot includes only employees in pay status thus, some permanent employees, like seasonal employees or those on active military tours of duty are not included….. while the United States Postal Service constituted 27.6% of the work force, it accounted for 47.1% of all EEO counselings, 36.6% of all complaints filed, 36.9% of all completed investigations and 40.8% of all complaints closed in FY 2008.”
Among the cabinet/large (15,000 or more employees) agencies, in FY 2008, the USPS reported the highest percentage (2.2%) of its work force that completed counseling, while the government-wide average was 1.2%
In FY 2008, the U.S. Postal Service again had the highest ADR participation rate in the pre-complaint process (74.1%) among the cabinet/large agencies, while the government-wide average was 49.5%.
The US Postal Service timely completed 99.5% of its 4,113 investigations in FY 2008.
In FY 2008, the U. S. Postal Service reported the second highest percentage (95.9%) of timely issued merit decisions without an Administrative Judge of agencies with 15,000 or more employees.
Targeted Disabilities
As of September 30, 2008, USPS employed 5,479 (0.83%) Individuals with Targeted Disabilities (IWTD). In order to have met the federal 2% participation rate goal, 15,259 IWTD were needed. This represented a decrease of 266 employees over FY 2007 and a decrease of 858 employees since FY 2004. The participation rate for FY 2007 was 0.84% and for FY 2004 was 0.9%. Over the 5-year period USPS had a net decrease of 0.07% in employees with targeted disabilities.
Costs
USPS agreed to pay $703,467 for 5,504 pre-complaint settlements, of which 456 were monetary settlements averaging $1,542. USPS expended a total of $6,175,445 for 4,113 complaint investigations, for an average expenditure of $1,501.
USPS agreed to pay a total of $5,777,740 plus other benefits for 669 complaint closures through settlement agreements, final agency decisions, and final agency orders fully implementing AJ decisions. For the 443 complaint closures with monetary benefits, the average award was $13,042.
click here for full report and charts
EEOC Rules USPS Must Process Class Action Complaint For Rehab Postal Employees
Filed under: eeo, Injured On Duty, legal cases, postal employees, usps
Edmond Walker, a Temporary Rural Carrier Relief, filed a class complaint alleging that discriminatory acts had been continuing for a class of disabled permanent rehabilitation employees in the Postal Service. The EEOC Administrative Judge certified the class. On appeal, the Postal Service argued that the certified class was poorly defined and the class members were unidentifiable. The EEOC found that the class was sufficiently defined to enable the parties to identify potential class members. The EEOC also determined that the class met all the requirements for certification, and therefore, ordered the Postal Service on March 18, 2008 to process the class complaint within 30 days. Walker v. Potter
Background
The lawyers in Glover/Albrecht EEO Class Action complaint sought to include Walker case:
“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.”
Edmond C. Walker, the class agent in the Walker class action, filed a complaint on August 19, 2002. Walker alleged that, since April 2000, the Postal Service discriminated against individuals with disabilities by:
1. Placing disabled individuals in permanent rehabilitation positions without engaging in the interactive process as required by law;
2. Restricting disabled individuals who are placed in permanent rehabilitation [sic] to limited work hours without any medical justification and without consulting the individual with a disability;
3. Fail[ing] to allow individuals with a disability, who have been placed in permanent rehabilitation positions, to work the number of hours determined appropriate by the individual and his/her physician and which are available; and
4. Fail[ing] to allow individuals with a disability, who have been placed in permanent rehabilitation positions, to use assistive devices in the workplace to accommodate their disabilities, including but not limited to, electric scooters, notwithstanding that said assistive devices pose no threat to safety or inconvenient [sic] in the workplace.
This claim has been analyzed to include denial of overtime.
On December 12, 2003, an EEOC Administrative Judge issued a decision concerning the Walker class complaint. The Administrative Judge ordered the Postal Service to “identify all those pending complaints that raise the same issue as the Walker class complaint during the time frame encompassed by the Walker class complaint, January 1, 2000, to the present.” For those complaints that had already been forwarded to an Administrative Judge– AJ ruled that they be placed into abeyance by the Administrative Judge assigned to the case.
The Administrative Judge issued a decision on May 12, 2005, granting certification after finding that the requirements of commonality, typicality, numerosity, and adequacy of representation were satisfied. Additionally, the AJ found there was no basis for dismissal of the class complaint under 29 C.F.R. § 1614.107. Accordingly, the AJ certified the following class: “all permanent rehabilitation employees whose duty hours have been restricted, from January 1, 2000, to the present, allegedly in violation of the Rehabilitation Act of 1973.” The AJ stated that “[f]or purposes of this litigation a permanent rehabilitation employee includes any rehabilitation program employee whose USPS employee records reflect an employee status code of LDC 69 and/or an employee status code of RC and/or RD.”
On September 30, 2005, the agency issued its Notice of Final Action declining to implement the AJ’s decision. On appeal, the agency argues that the certified class is poorly defined and the class members are unidentifiable. The agency notes that the AJ provided no definition for the phrase “duty hour restriction” which it argues makes the class legally untenable. The agency claims that although the AJ identified two specific types of restrictions in his definition – restrictions limiting the number of hours generally worked and duty hour restrictions that allegedly result in the denial of overtime – the types of restrictions are open to all sorts of interpretations. Further, the agency claims it is impossible to identify who had duty hours restricted or who among permanent rehabilitation employees are disabled. The agency stated that although it can determine the number of permanent rehabilitation employees between January 1, 2000, and the present, there is no way to identify which of those employees had their duty hours restricted.
The Postal Service Argued that “the determination of whether a purported class member is disabled, regarded as disabled, or has a record of a disability cannot be made without resort to thousands of mini trials, making class treatment inappropriate. The agency notes that although a person in a permanent rehabilitation job by definition has an injury causing a permanent restriction, this does not mean that every injury necessarily constitutes an impairment under the Rehabilitation Act or that every permanent restriction constitutes a substantial limitation on a major life activity. The agency states that given the varying natures of permanent rehabilitation employees’ injuries, there is only one major life activity which they all have in common: working. However, the agency notes that the permanent rehabilitation employees are all working and argues that therefore, that they cannot be considered substantially limited in working.”
The Postal Service also argued that “complainant’s EEO Counselor contact is untimely since no acts of discrimination occurred within the 45 days prior to his May 29, 2002 EEO Counselor contact on the class issue. Rather, the agency argues that the alleged discriminatory action occurred in May 2000, when complainant first accepted a 14-hour a week permanent rehabilitation position. With regard to the AJ’s finding that complainant moved for class certification at a reasonable point in the process, the agency claims that complainant did not formally move for class certification until December 8, 2003, almost 3 1/2 years after Filing his individual complaint and did not file a class complaint until August 22, 2002, more than two years after filing his individual complaint.”
EEOC’s response in part: “We find that complainant has met the requirements of commonality and typicality. Complainant alleged that the agency has a nationwide practice of restricting the duty hours of permanent rehabilitation employees who are disabled. In support of his allegation, complainant submitted declarations from employees from geographically dispersed agency facilities who each asserted that they were permanent rehabilitation employees and had then-work hours restricted. Thus, we find that the evidence supplied is sufficient to support an inference that there is a class of persons who were harmed by the identified agency policy or practice of restricting work hours and that the class will share common questions of fact.”
“It is the decision of the Commission to certify the class comprised of individuals with disabilities in permanent rehabilitation positions who had their duty hours restricted beginning on March 24, 2000. The agency is ORDERED to process the remanded class complaint in accordance with 29 C.F.R. §1614.204(e) et seq. Within 15 calendar days of the date this decision becomes final, the agency shall notify all class members of the acceptance of the class complaint in accordance with § 1614.204(e). Within 30 calendar days of the date this decision becomes final, the agency shall provide the appropriate EEOC District Office with a copy of the notice sent to the class members, and shall request the appointment of an AJ, who shall undertake the continued processing of the complaint pursuant to § 1614.204(f) et seq. The agency shall provide a copy of the notice of certification and request for appointment of an EEOC Administrative Judge to the Compliance Officer, as referenced herein.”