Year: 2021

Recently many claimants have been asking about the timeline as to when claims will be evaluated. Unfortunately, while it has been more than a year since the Judge initially ordered that up to five Special Masters be used in this process, no claims have yet been evaluated and we do not believe that any large volume of claims will be evaluated by fall of 2021. Indeed, while our attorneys submitted their list of five Special Master candidates, the Postal Service has attempted to delay things by filing objections and multiple appeals to prevent this process from moving forward. While each of these attempts to delay the action have been rejected, the Administrative Judge has not yet selected a Special Master. Until the Special Master (or Special Masters) have been appointed, the initial batch of claimants to be reviewed cannot be selected and thus no claims can be evaluated. We are hopeful though that in the near future we will hear from the Administrative Judge so that the process can move forward. We understand that this has been a long and frustrating journey, but as your attorneys, we will continue to take every action possible to help the Judge move this process forward! Please continue to check our website for updates in the coming months and as always, feel free to give us a call as to where things stand.

Pursuant to the Administrative Judge’s Order approving the use of Special Masters, Thomas & Solomon LLP and Kator, Parks, Weiser & Harris PLLC have already submitted a list of five potential Special Masters who have great experience in handling large number of claims similar to the claims in this case. At this time, the Administrative Judge has not yet made her selection of Special Masters. With the recent dismissals of the USPS “final action” and appeals of the Administrative Judge’s orders, we are hopeful that the Special Masters will be selected soon and the claims review process will commence in the very near future.

EEOC DISMISSES ANOTHER USPS APPEAL

The EEOC Office of Federal Operations (EEOC-OFO) dismissed another USPS “final action” and appeal of the Administrative Judge’s orders regarding the use of Special Masters to assist with review of the claims. This decision by EEOC-OFO means that the case remains fully before the EEOC Administrative Judge, and that she can use her discretion to find an appropriate method to have the claims reviewed and decided. The USPS attorneys sought to use its repeated appeals as a way to stall the case further and challenge the Administrative Judge’s authority. With this fast, favorable decision by EEOC-OFO, the course is now set to have the claims review process commence in the very near future.

Please continue to monitor this website for updates on the case. Thank you for your continued patience!

Administrative Judge’s Order Rejecting Postal Service’s Encouraging of Claimants to Request Final Agency Decision

In response to the Administrative Judge’s February Order setting out a process to review claims by the use of Special Masters, the Postal Service filed a motion seeking to both delay the case and encourage as many class members as possible to withdraw from the case.

In particular, the Postal Service wanted to encourage claimants to request Final Agency Decisions (or FAD) in order to drop out of this case and start over.

On March 22, 2021, the Judge issued an Order squarely rejecting the Postal Service’s motion. The Judge’s Order explains that “the very question of FADs is premature, baffling and utterly irrelevant at this point.” The Judge emphasized that the Postal Service was required to wait for the Judge to issue a decision on claimant relief before issuing a FAD. The Judge’s Order says, “no claimant is entitled to a FAD until the AJ issues a decision on the disputed claims. Since no decision has been issued on any of the disputed claims, NO ONE IS ENTITLED TO A FAD. NO ONE SHOULD BE REQUESTING A FAD and THE AGENCY SHOULD NOT BE ISSUING FADs.”

The Judge went on to explain that although claimants themselves can seek a FAD and thus leave this case, the Judge also said it is:

unclear why any claimant would opt out of the class and seek a FAD. The purpose of this class action is to remedy a harm that has adversely affected over 28,000 individuals nationwide in the Postal Service. The value and strength of the lawsuit is that there are so many people who the Commission has found to have been harmed by the NRP. How is withdrawing from the class and requesting a FAD beneficial to the individual claimant (who risks getting nothing from the Agency) or to the class (whose numbers will quickly lessen)?

These are strong words from the Judge, indicating her resolve to push forward with the claims process as fast as possible.

On a related issue, a few claimants have asked if they can both request a FAD and still get the advantages of this case. The Judge answered this question explicitly, and the answer is “No.” The Judge noted that there are two ways this case will be resolved: (1) either through the special master process; OR (2) if a claimant opts out and seeks a FAD. However, the Judge emphasized the perils of seeking a FAD: “If a claimant seeks a FAD and gets nothing, the process of appeal and hearings and evidence starts all over again for that individual complaint and if there has been a settlement in the McConnell Class Action, said Complaint runs the risk of being foreclosed for any review of their claims or compensation from any prospective settlement.”

Although as discussed above the Judge did not think it was a good idea to opt-out of this case, she noted that people have the legal right to do so. The Judge set forth what the opt out claimant would need to expressly state in writing:

that claimant is aware that they are seeking a Final Agency Decision (FAD) on whether they are entitled to damages and to how much they are entitled, that the FAD may or may not be in their favor, and if so, claimant has the right to seek an appeal from OFO, said appeal may or may not be reviewed given that there is a McConnell Class Action Remedial Phase litigation. If claimant’s appeal is heard by OFO, the Agency’s decision can be upheld or the case can be remanded to an AJ in that claimant’s geographical area to determine damages.

As your attorneys, we agree with the Judge’s negative view of the opt-out process. We strongly recommend that you do not opt out of this process. As the Judge noted in her decision, “the value and strength of the lawsuit is that there are so many people who the Commission has found to have been harmed by the NRP.”

EEOC DISMISSES USPS APPEAL

With a letter order on March 26, 2021, the EEOC Office of Federal Operations (EEOC-OFO) dismissed the USPS “final action” and appeal of the Administrative Judge’s orders regarding the use of Special Masters to assist with review of the claims. This decision by EEOC-OFO means that the case remains fully before the EEOC Administrative Judge, and that she can use her discretion to find an appropriate method to have the claims reviewed and decided. The USPS attorneys sought to use the USPS March 17, 2021 appeal as a way to stall the case further and challenge the Administrative Judge’s authority. With this fast, favorable decision by EEOC-OFO, the course is now set to have the claims review process commence in the very near future.

Please continue to monitor this website for updates on the case. Thank you for your continued patience!

Further Information on New Order from Judge

As noted in our February 2021 update, the Judge recently issued an Order setting out a process for reviewing claims in this case.

For those claimants represented by Thomas & Solomon and Kator, Parks, Weiser & Harris PLLC, we have recorded a message that not only provides a further update of the Judge’s Order, but also responds to many frequently asked questions. In order to access the recorded message, you will need to call a special phone number. If you are represented by our offices, you have received (or soon will receive) an automated telephone call from us, providing you with the special telephone number for you to call and hear the recording. If you did not receive an automated call from us with the special number for you to call to hear the recording, please reach out via email at [email protected] or by telephone at 585-272-0540.

Please know that the system with our recorded message can only handle a certain amount of callers at any given time, so please be patient if you do not get through the first time you call. The recording will be available 24 hours a day (7 days a week) until April 9, 2021.

If you intend to listen to the entire recording, please plan for a recording that lasts 30-45 minutes.

There will be a Spanish translation of the recording also available at the same number. If you are a person who is hard of hearing or deaf, and you need an alternative method of receiving the information, please reach out to our office directly via email at [email protected] or by telephone at 585-272-0540.

The USPS attorneys are attempting to further delay the awards in this case by filing an improper appeal in the middle of the process. USPS actually tried this in 2013 in this case, and the untimely appeal was rejected. We will work to ensure that the EEOC again swiftly rejects the improper appeal, and work to have the EEOC Administrative Judge press forward with an efficient review process without delay. Please continue to monitor this website for further updates.

Status Update
List of Special Masters Filed with EEOC Judge

On March 8, 2021, we followed the EEOC Administrative Judge’s orders, and filed a list of five potential Special Masters who can assist with processing the claims in this case. We conducted extensive research, and came up with a list of five Special Masters who have great experience at reviewing large numbers of claims similar to the claims in this case. And they have all been able to complete review of large numbers of claims in a reasonable amount of time. We hope that this will assist the Administrative Judge in getting all the claims in this case reviewed and decided in an efficient manner. As we learn more about the Administrative Judge’s plans ahead, we will provide updates on this website. Thank you for all of your continued patience with this case, and we hope to have more progress to report to everyone soon.

Status Update
IMPORTANT NEW ORDER FROM JUDGE

The EEOC Administrative Judge issued a new order regarding the processing of claims in this case. The Judge reiterated that Special Masters will be used to speed up the claim review process, and the Judge rejected all USPS objections to the use of Special Masters. The Judge also modified her previous order as we requested, eliminating the need for claimants to pay for the Special Masters. Citing to our legal briefing, the Judge clarified that USPS must pay all charges for the Special Masters. This is a big victory for all claimants, and a giant step toward conclusion of this process.

To recap: in July 2020 the Judge issued an order setting up the use of Special Masters to speed up the claim review process, but USPS argued that the Judge lacked authority to use Special Masters and could not force USPS to pay for Special Masters; the Judge’s recent order, citing our legal briefing, brushed aside USPS objections. As explained by the Judge in the recent order:

“[T]he U.S. Postal Service was found liable for creating and implementing a years-long, nation-wide program that discriminated against thousands of disabled USPS employees. The Agency has necessitated the referral to Special Masters because it has disputed every single claim for damages and argues that the Commission has to hear and decide all 29,000 disputed claims, knowing that the Commission has limited resources to do so and such a task would be near impossible to complete, effectively creating an insurmountable impasse.”

In our view, this order reflects the Judge’s determination to press forward as fast as possible despite all efforts by USPS to delay and disrupt the claim review process.

For our clients, we are planning to have a recorded call or video later in the next month where we can answer questions and discuss the next steps in the process. We will also address the risks of leaving the EEO process and starting your case all over again in federal court, something we strongly recommend against without talking to a member of the legal team first. Clients who would like to submit questions for us to address, please send your questions via email to [email protected] or send us a letter to Thomas & Solomon LLP, 693 East Avenue, Rochester, NY 14607. Please continue to monitor the website for further updates.