Month: March 2021

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.