U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verlie S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020001789 Hearing No. 480-2015-00578X Agency No. 1F-901-0105-07 DECISION On December 2, 2019, Complainant filed a Notice of Appeal with the Equal Employment Opportunity Commission (EEOC or Commission). Complainant attached documents related to the settlement of Deborah Cooper, et al. v. U.S. Postal Service, EEOC No. 480-2015-00578X, Agency No. 1F-901-0105-07 (Cooper).2 The record shows that, on October 25, 2019, an EEOC Administrative Judge (AJ) issued a Final Order Granting Approval of Settlement Agreement in Cooper. The Agency adopted the AJ’s final approval by final order dated November 8, 2019. Thus, we view Complainant’s appeal as a challenge, pursuant to 29 C.F.R. §1614.204(g)(4), to the AJ’s approval of the Cooper settlement agreement. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Cooper, et al. v. U.S. Postal Serv., EEOC Appeal No. 0720090043 (May 9, 2012) (finding that the AJ’s definition of the class and ultimate certification of the class complaint was supported by the record). 20200017892 BACKGROUND The Cooper class action giving rise to the settlement agreement at issue concerns discrimination by the Agency against injured employees in the Los Angeles District who were previously accommodated and subsequently denied work hours or instructed that there was no work available for them from approximately June 12, 2007 to March 20, 2015, in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The class was found to consist of approximately 348 current or former Agency employees. The record indicates that, on October 25, 2019, the AJ issued a Final Order Granting Approval of the Settlement Agreement in Cooper. The Agency issued its Notice of Final Action on Final Approval of the Settlement Agreement on November 8, 2019, agreeing to fully implement the settlement agreement. Under the terms of the settlement agreement, the total amount awarded to class members was $1,200,000.00.3 The class members are eligible for relief as members of one of four groups according to an allocation formula, which considers the date of the alleged harm and type of evidence verifying the alleged harm. Group 1, consisting of 186 class members with claims worth approximately $3,189.00 per person, covers claims that arose on or before the issuance of an October 29, 2007 memorandum from the L.A. District Manager (DM Memo). Group 2, consisting of 68 class members with claims worth approximately $1,161.00 per person, covers claims that arose after the DM Memo but before the implementation of the National Reassessment Program (NRP) in the L.A. District on March 20, 2009. Group 3, consisting of 46 class members with claims worth approximately $696.00 per person, covers claims that arose after the implementation of the NRP but before March 20, 2015, provided that the evidence submitted shows a claim other than harm caused by the NRP as alleged in McConnell v. U.S Postal Serv., EEOC No. 520-2010- 00280X (McConnell).4 Group 4, consisting of 48 class members with claims worth $271.00 per person, covers claims for which class members cannot clearly identify when they were initially sent home without pay, as evidenced by payroll codes 49, 59, and 60. The settlement agreement also provided for an award of $2,000.00 to a former class agent in recognition of her time commitment to participation in this matter. 3 Under the agreement, the class fund totals $1,200,000.00, including attorneys’ fees up to $200,000.00, attorneys’ costs up to $210,000.00, and class costs up to $70,000.00. 4 The McConnell class action concerns a class of the Agency’s rehabilitation and limited-duty employees whose positions were assessed by the Agency's National Reassessment Program (NRP) between May 5, 2006 and July 1, 2011. An EEOC AJ found that the NRP subjected qualified rehabilitation and limited-duty employees to disparate treatment which resulted in rehabilitation and limited-duty employees with disabilities having their reasonable accommodations withdrawn, as well as being subjected to disability-based harassment and having their confidential medical information accessed by unauthorized persons. EEOC Appeal Nos. 0720160006, 0720160007 (Sept. 25, 2017), req. for recons. den. EEOC Request Nos. 0520180094, 0520180095 (Mar. 9, 2018). 20200017893 Following the issuance of the Agency’s final order adopting the AJ’s approval of the global settlement agreement, Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant asserts that she was never offered a reasonable accommodation. In its appellate brief, the Agency asserts that of the 97 appeals before the Commission, only six appeals come from individuals who objected to the settlement agreement and thus have standing to appeal. However, the Agency argues that the Commission should affirm the AJ’s approval of the settlement agreement and should dismiss all appeals for at least five reasons: (1) the majority of complainants failed to object and thus lack standing to object; (2) some complainants expressly released their right to appeal based on the submission of a Claim Form and Release; (3) some complainants withdrew their appeals; (4) some complainants’ allegations fall under the class definitions of other cases that were expressly excluded from the class definition in this matter; and (5) complainants did not allege that the AJ abused her discretion in approving the settlement agreement. With respect to Complainant specifically, the Agency argues that Complainant’s appeal warrants dismissal because Complainant “essentially filed a blank appeal form without providing any statement or brief regarding the basis for [her] appeal.” The Agency adds that Complainant did not respond to the Notice of Resolution and that Complainant failed to object that the settlement was not fair, adequate, and reasonable to the class as a whole. The Agency maintains that the appeal should also be dismissed because Complainant objected that the settlement agreement was unfair to her personally because she was not a member of the Cooper class. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.204(g)(4) provides that a settlement of a class complaint shall be approved if it is fair, adequate, and reasonable to the class as a whole, and does not solely benefit the class agent. Class members must petition the AJ to vacate the resolution, or object, within 30 days of the date of the notice of resolution if it benefits only the class agent, or is otherwise not fair, adequate and reasonable to the class as a whole. We review an AJ’s decision to approve a class action settlement under an abuse of discretion standard. See Haywood v. U.S. Postal Serv., EEOC Appeal No. 0120111782 (July 25, 2011) (citing to Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). In adopting the abuse of discretion standard for reviewing an AJ’s approval of a resolution under 29 C.F.R. §1614.204, we recognize “that the decision to approve or reject a settlement agreement is committed to the sound discretion of the trial judge because he is exposed to the litigants, and their strategies, positions and proof.” Id. 20200017894 In granting approval of the settlement agreement in Cooper, the AJ noted that 26 class members, including Complainant, filed a timely objection to the settlement agreement and four additional class members filed untimely objections. The AJ explained that following initial notice, 15 of the objectors were excluded from the group of eligible class members due to failure to provide required information, such as declarations. The AJ added that half of the objectors failed to provide any information that would suggest that they were potential class members and all but one of the timely objections failed to object to the settlement agreement itself. Several objectors asserted that they were entitled to individual relief but were excluded due to their inclusion in other class action complaints. Moreover, none of the objections, including Complainant’s, questioned the fairness, adequacy or reasonableness of the settlement agreement to the class as a whole. Rather, Complainant objected on grounds that she should have been included as a class member in the settlement agreement. We find that the AJ properly denied Complainant’s objection. On appeal, Complainant does not contend that the AJ abused her discretion in approving the settlement agreement or denying her objection. Further, Complainant asserts no specific objections regarding the fairness, adequacy, or reasonableness of the settlement agreement to the class as a whole. Upon review and based upon the Findings articulately and persuasively set forth in the Final Order Granting Approval of Settlement Agreement, we conclude that the AJ did not abuse her discretion when she concluded that the settlement agreement was fair, adequate, and reasonable to the class as a whole. The AJ properly concluded that the terms of the settlement were based on appropriate factors, including the absence of fraud or collusion; public policy in favor of reasonable settlements; the substantial record beginning with initial proceedings before final approval of class definition by the Office of Federal Operations (OFO); the substantial record based on proceedings in the case; uncertainty of results; avoiding lengthy and expensive litigation and possible appeal; notice to potential class members after preliminary approval and an opportunity to be heard; and the objections to the settlement agreement, which did not object to the fairness to the class as a whole. Complainant raises no persuasive arguments that the compromises reached in this resolution were not fair, adequate, and reasonable to the class as a whole. As such, we find that dismissal of the appeal is proper. CONCLUSION Accordingly, Complainant’s appeal is denied and the Agency’s final action approving the global settlement agreement is AFFIRMED. 20200017895 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 20200017896 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 2, 2020 Date