0720090043
05-09-2012
Deborah Cooper, Wanda West, et al., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Deborah Cooper,
Wanda West, et al.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0720090043
Hearing No. 480-2009-00211X
Agency No. 1F-901-0105-07
DECISION
Following its June 25, 2009 final action, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) decision to certify the above-captioned matter as a class complaint. The Agency asks that the Commission affirm its final action rejecting the AJ's decision. For the following reasons, the Commission REVERSES the Agency's final action.
ISSUE PRESENTED
The issue presented in this appeal is whether, in a May 12, 2009 recommended decision titled "Order Substituting Class Representatives; Recommended Granting Class Certification," the EEOC Administrative Judge (AJ) properly certified a class-action on behalf of all limited and light duty employees (excluding permanent rehabilitation employees) in the Los Angeles District [or "Performance Cluster"] whose work hours were limited, including being sent home and told not to return, since June 12, 2007, allegedly in violation of Rehabilitation Act of 1973.
BACKGROUND
This case addresses a determination by an Administrative Judge (AJ), dated May 12, 2009, which she identified as "Order Substituting Class Representatives; Recommendation Granting Class Certification."
The AJ recommended that the Class be defined as:
All limited and light duty employees (excluding permanent rehabilitation employees) in the Los Angeles District (or "Performance Cluster") whose work hours were limited, including being sent home and told not to return since June 12, 2007, allegedly in violation of the Rehabilitation Act of 1973.
The AJ noted that following the practice of sending home the limited and light duty employees, the Agency Los Angeles District Manager subsequently issued a District-wide memorandum, dated October 29, 2007, indicating that the Agency cease sending home employees without work. The AJ found that this memorandum did not distinguish on the basis of location, craft, or supervisory chain of command; and that the practice of sending home employees "affected the whole proposed Class of light and limited duty employees, and not merely a few employees for unique, individual reasons."
Prior to addressing the particulars of the class complaint itself, the Commission will first address the AJ's action relating to the substitution of a class representative.
Minette Miles initially filed a formal complaint on November 2, 2007, that was identified as Agency No. 4F-090-0010-08, and was proposed as Class Agency under EEOC Hearing No. 480-2008-00351X.. The substance of Minette Miles' complaint was that the Agency discriminated against her on the basis of disability ("on-the- job/legs") when she was instructed to "clock out, do not clock in, told there was no work, and sent home."
The Administrative Judge assigned to the case stated that, after substantial information provided by the Agency, and the then-proposed Class Agent, Minette Miles, the AJ determined that Miles was, and is, already a Class Member in a separate class action. The record reflects that in Walker v. USPS, EEOC Appeal No. 072006005 (March 18, 2008), the Commission upheld an Administrative Judge's decision to certify a national class of permanent rehabilitation employees with no limitation to a specific craft, who claimed that their hours have been limited based on disability, since 2000; and that during the relevant time, Miles was issued a class notice in Walker. Despite Miles' insistence that she was not a Class member in Walker, the AJ did not recognize her claim to be Class Agent or a Class Member in the instant case. The AJ stated if and when an Administrative Judge presiding over the Walker case determines that Miles is not a member of that class, Class Counsel in the instant case may move for reconsideration of the Order based on any new evidence
The AJ indicated that she provided the Class with an opportunity to designate another Class Agent. The AJ noted that the Class designated four alternative Class Agents: Deborah Cooper, Wanda West, and employees PB and YW. The AJ determined that employees PB and YW was considered as Class Members, but not as Class Agents.
However, the AJ determined that the Class satisfactorily demonstrated that the substitution of Deborah Cooper and Wanda West satisfied the criteria for class certification. The AJ noted that Complainant Cooper filed a formal complaint, claiming that on July 11, 2007, she was told by her supervisors that that was no light duty work available within her restrictions and was instructed to go home.
The record also reflects that Complainant West filed a formal complaint on August 28, 2008, wherein she claimed that she had been denied work within her medical restrictions and ordered to perform work outside of her restrictions.
The AJ next addressed Class Agents' allegation that the Agency's removal of light or limited duty assignments deprived them of the interactive process and reasonable accommodation, and as a result deprived them of equal opportunity to work. The AJ determined that the Class Agents stated a claim.
The AJ next analyzed whether the Class met the certification requirements, which include numerosity, commonality, typicality and adequacy of representation. With respect to numerosity, the AJ found that the numerosity requirement was met in this case because Complainant has identified over 100 potential class members but the Agency argues that this number should be reduced to 20, and therefore that the Class should not be certified. The AJ found, however, that the Agency's arguments for such reductions are without merit, and therefore, find that numerosity has been established.
With respect to commonality and typicality, the AJ found that the Class Agents have met the requirement because all were sent home for alleged lack of work within their restrictions, at jobs within the Los Angeles District since June 12, 2007. The AJ noted that the Class Agents have not only alleged that this practice was only followed by the entire District but also showed that the Agency itself recognized a common practice of sending employees with restrictions home without work when it sent a District-wide memorandum to supervisors and managers stating that the practice should stop, in October 2007. The AJ noted that the subject memorandum did not distinguish on the basis of location, craft or supervisory chain of command. The AJ noted that as a result, the alleged unlawful practice affected the whole proposed Class of light duty and limited duty employees and not merely a few employees for individual reasons.
The AJ also found that the typicality requirement was met in this case because the Class Agents asserted that their experiences were similar to other employees' experience because all the employees were subject to similar orders during the relevant time period within the Los Angeles District.
Finally, the AJ found that the Class Counsel could adequately represent the class because she had a successful career representing the Agency before starting her own firm. As counsel for the Agency, the Class Counsel received training in litigation and was honored for her work. The AJ determined that there has been no demonstration that the Class Counsel cannot adequately represent the Class here.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ's decision contains the following erroneous findings: (1) that the Class Agents have standing to assert a Rehabilitation Act claim because they are qualified individuals with a disability; (2) that the Class Agents have stated actionable claims; and (3) that the Class Agents' claims can, and should, proceed as a national class action. The Agency argues that the AJ's decision is in conflict with applicable legal authority based upon the facts presented.
The Agency also argues that the Class complaint does not meet the class prerequisites of commonality, typicality and adequacy of representation as to any of the claims presented. Specifically, the Agency argues that Complainant, a Mail Processing Clerk with no job-related injury, works in the Los Angeles District. The Agency states that there are approximately 2,800 employees at the Los Angeles District and their work takes place in a production environment and they are not certified to perform carrier tasks. The Agency further argues that Mail Processing Clerks are also not trained to perform other clerk duties such as the duties of Sales & Service Associates, also in the clerk craft.
Further, the Agency argues that Complainant West, a Letter Carrier "working out of the Village post office in Los Angeles (a facility with approximately 100 letter carriers), cannot purport to have claims typical of mail processing clerks who work in the production environment of the LA P&DC (a facility with approximately 2,824 employees). Letter carriers work during the day, with Sundays and one other - rotating day - off. In contrast, mail processing clerks at the LAP&DC bid to work on any one of the three tours: Tour 1, approximately 1 a.m. to 8 a.m.; Tour 2, approximately 8 a.m. to 5 p.m.; or Tour 3, approximately 5 p.m. to 1 a.m. Certain accommodations that are possible for a clerk (for example, transfer to a different tour or different processing function within the LAP&DC) are not possible for a carrier." The Agency argues that while West's claims may be typical of Letter Carriers at her workplace, they are not typical of claims made by employees across crafts within the Los Angeles District.
The Agency argues that the Class complaint combines light employees and limited duty employees together under the definition of "injured worker." The Agency further argues that the definition "over-simplifies the issues involved in each particular employee's situation." For instance, the Agency states that Complainant West, with an on-the-job injury and Office of Workers' Compensation Program (OWCP) payments and coverage is differently situated from Complainant, an employee "whose illness or injury arose outside of work and whose medical concerns and benefits are not covered by OWCP. The identification of two very disparate claims and individuals as Class Agents is not enough to create a class that has common claims."
Moreover, the Agency stated that any employees either sent home or given reduced work hours in the Los Angeles District, pursuant to a National Reassessment Process (NRP) would find their claims subsumed under Sandra McConnell v. United States Postal Service, Agency No. 4B-140-0062-06.1 The Agency argues that the recommended class definition "does not differentiate between the alleged policy instituted by [District Manager] and the NRP. . . as implemented in the Los Angeles District. Therefore, the definition is overbroad and will contain considerable overlap in members."
In response, Complainant's attorney argues that the Agency appellate arguments are specious. First, Complainant argues that the evidence establishes that both Cooper and West are qualified individuals with disabilities.
Second, Complainant's attorney rejects the Agency assertion that "injured" employees are not "disabled" employees and that as a consequence, not all putative class members are "disabled" employees" Complainant's attorney notes that the Commission has previously affirmed the certification of "injured" employees for purposes of certifying a class action based upon disability discrimination.
Third, Complainant's attorney rejects the Agency assertions that Limited and Light Duty Employees cannot be members of the same class; and that employees from different crafts cannot be in the same class.
Finally, Complainant's attorney argues that the Class met the four requirements for Class Certification as identified in 29 C.F.R. � 1614.204(a)(2), and that the AJ thoroughly and adequately analyzed these requirements.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.204(a)(2) states that a class complaint is a written complaint of discrimination filed on behalf of a class by the agency of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent are typical of the claims of the class; and (iv) the agent of the class, or if represented, the representative will fairly and adequately represent the interests of the class. EEOC Regulation 29 C.F.R. � 1614.204(d)(2) provides that a class complaint may be dismissed if it does not meet the four requirements of a class complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. � 1614.107.
The numerosity prerequisite states that the potential class must be sufficiently numerous so that a consolidated complaint by the members of the class, or individual, separate complaints from members of the class is impractical. See 29 C.F.R. � 1614.204(a)(2)(i). The focus in determining whether the class is sufficiently numerous for certification is the number of persons affected by the Agency's alleged discriminatory practice(s). See White, et al. v. Department of the Air Force, EEOC Appeal No. 01A42449 (September 1, 2005). The Commission has held that the relevant factors to determine whether the numerosity requirement has been met are the size of the class, the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action at issue, and the size of each member's claim. Carter, et al. v. USPS, EEOC Appeal No. 01A24926 (November 14, 2003). The United States Supreme Court has held that the numerosity requirement of Federal Rule of Civil Procedure 23 does not impose a numerical minimum or cut-off point for the size of the class but, instead, requires an examination of the facts of each case. Harris v. Pan American World Airways, 74 F.R.D. 24 (N.D. Cal, 1977).
The purpose of the commonality and typicality requirements is to ensure that a class agent possesses the same interests and has experienced the same injury as the members of the protected class. See General Telephone Company of Southwest v. Falcon, 457 U.S. 147 (1982). While these two criteria tend to merge and are often indistinguishable, they are separate requirements. Id. Commonality requires that there be questions of fact common to the class; that is, that the same Agency action or policy affected all members of the class. Typicality, on the other hand, requires that the bases of the class agent be typical of the claimed bases of the class. The underlying rationale of the typicality and commonality requirement is that the interests of the class members be fairly encompassed within the class agent's claim. Id.
The final requirement is that the class agent, or his or her representative, adequately represent the class. To satisfy this criterion, the agent or representative must demonstrate that he or she has sufficient legal training and experience to pursue the claim as a class action, and will fairly and adequately protect the interests of the class. Besler, et al. v. Department of the Army, EEOC Appeal No. 01A05565 (December 6, 2001); Woods v. Department of Housing and Urban Development, EEOC Appeal No. 01961033 (February 13, 1998). In this regard, it is necessary for the class agent, or the representative, to demonstrate sufficient ability to protect the interests of the class so that the claims of the class members do not fail for reasons other than their merits. Id.
In the instant case, the AJ found that the proposed Class met all four of the requirements for class certification. With respect to commonality and typicality, the AJ found that the Class Agents have met the requirement because all were sent home for alleged lack of work within their restrictions, at their jobs within the Los Angeles District since June 12, 2007. The AJ also found that the typicality requirement was met because the Class Agents asserted that their experiences were similar to other employees' experience because all the employees were subjected to similar orders during the relevant time period within the Los Angeles District.
With respect to the numerosity requirement, the AJ found that because Complainant has identified over 100 potential class members but the Agency argues that this number should be reduced to 20, and therefore that the class should not be certified. The AJ found, however, that the Agency's arguments for such reductions are without merit, and therefore, find that numerosity has been established.
Finally, the AJ found that the Class Counsel could adequately represent the class because she had a successful career representing the Agency before starting her own firm. As counsel for the Agency, the class counsel received training in litigation and was honored for her work.
Based upon the foregoing, the Commission agrees with the AJ's determination that the Class should be defined as "all limited and light duty employees (excluding permanent rehab employees) in the Los Angeles District [or "Performance Cluster"] whose work hours were limited, including being sent home and told not to return since, June 12, 2007, allegedly in violation of Rehabilitation Act of 1973."
Finally, the Commission addresses that the Agency's contentions on appeal. The Commission determines that the record supports a finding that Class Agents Cooper and West were qualified individuals with a disability.
We also reject the argument that "limited" and "light duty" employees cannot be found members of the same class The question of whether an agency has satisfied its obligations under the Rehabilitation Act concerning reasonable accommodation of a particular employee is a separate inquire from any determination that OWCP may make of that employee. See Cleary v. Department of Veterans Affairs, EEOC Appeal No. 0120050911 (December 21, 2006).
Moreover, we reject the Agency's assertion that the definition of the instant class is overbroad and will have considerable overlap with the McConnell class. We note the record supports the AJ's assessment that the "evidence was particularly strong in this case," that an alleged policy of sending employees with impairments home from work, without pay and without reasonable accommodation operated throughout the Los Angeles District.
The AJ noted that on May 19, 2008, Agency counsel submitted a copy of a letter to Class Counsel, in revision to an answer previously given on a discovery request for documents reflecting the Los Angeles Performance Cluster's implementation of the NRP. Therein, the AJ indicated that the Class Counsel had indicated that it "was my understanding at this point in my analysis that the NRP was not the reason that any individuals were sent home in the Los Angeles District. . . "
Finally, we find that the record supports the AJ's finding regarding the substitution of the class representative, for the reasons discussed above.2
CONCLUSION
After a careful review of the record, and for the reasons discussed above, we find that the AJ's definition of the class is supported by the record, and we discern no basis to disturb the AJ's ultimate certification of the class complaint.
Therefore, the Commission REVERSES the Agency's final action rejecting the AJ's certification of the Class and we REMAND this matter to the Agency to take action in accordance with this decision and the ORDER of the Commission, below.
ORDER
The Agency is ORDERED to perform the following:
1. Notify potential Class Members of the accepted class claim within fifteen (15) calendar days of the date this decision becomes final, in accordance with 29 C.F.R. � 1614.204(e).
2. Forward a copy of the Class complaint file and a copy of the notice to the Hearings Unit of the Los Angeles District Office within thirty (30) calendar days of the date this decision becomes final. The Agency must request that an Administrative Judge be appointed to hear the certified class claim, including any discovery that may be warranted, in accordance with 29 C.F.R. � 1614.204(f).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 9, 2012
__________________
Date
1 On May 30, 2008, an EEOC Administrative Judge (AJ) granted class certification in McConnell, et. al. v. United States Postal Service (Agency No. 4B-140-0062-06) which defined the class as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act. The AJ defined the McConnell claims into the following broader complaint: (1) The NRP fails to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, fails to include an interactive process, and improperly withdraws existing accommodation); (2) The NRP creates a hostile work environment; (3) The NRP wrongfully discloses medical information; and (4) The NRP has an adverse impact on disabled employees. The agency chose not to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class, and the McConnell claims, as stated above. Accordingly, the Commission reversed the agency's final order rejecting the AJ's certification of the class. McConnell v. USPS, EEOC Appeal No. 0720080054 (January 24, 2010).
2 In the appellate brief, Complainant counsel states in a footnote 4 that the argument will be made that Minnette Miles should also be recognized as a Class Agent. We discern no elaboration on this assertion, and determine that the AJ properly identified the named Class Agents, as discussed above.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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