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.

Status Update

We wanted to reach out and give a quick update on the case, and answer some questions that have been raised. The claims, evidence, and legal briefs for all of our clients’ relief claims have been submitted to the EEOC Administrative Judge. The Judge has not yet made clear exactly how she plans to move forward with reviewing the information or issuing relief decisions. The Judge set up a course of review that would have had outside masters review a number of claims, but that approach seems to have been stalled out due to USPS objections. We have presented the Judge with many options on ways to quickly move the relief process forward, and we continue to do everything we can to help get relief into your hands.

Our goal is to get this matter resolved in a fair way as quickly as possible. We hope to have some good progress on final awards during 2021, and we will continue to post updates on this website.

We thank you all for your continued patience with this process. We share your frustration with how long this is taking, and we share your anger with the Postal Service’s continued efforts to delay justice in this case. Please know that we are fighting for you, just as we have done for over 10 years.

Here are answers to some questions that have been presented by a number of the class members:

What if I move or change my contact information?

For our clients, please provide your updated contact information to us. The best way to provide this information is to email us at [email protected]. We keep track of our clients’ contact information, and we can provide that to USPS or the EEOC Administrative Judge when they need it.

Will my claim continue if I die?

First, please know that we will continue fighting to get you the best possible award. We are dedicated to achieving the best results for you in this case, and we will not let the USPS game of dragging this process out free them from their legal obligations.

Your claim in this case is a personal asset. Upon your death, all of your assets will pass along, either under the terms of a will or (if you have no will) pursuant to what the law prescribes. Each state has different laws governing this issue, and we recommend that you consult with someone in your area about planning your estate.

Unfortunately, some of our clients in this case have passed away. We notified the Judge about this, and argued that this is yet another reason to move this process toward a quick resolution.

Can I be reinstated to my USPS job now while this relief process is ongoing?

There is no way currently for us to get you back in your position until the EEOC Administrative Judge issues an order. If it is found that you meet the legal criteria for reinstatement, the Judge can order USPS to give you back the job you held before the NRP.

Status Update

There has been no confirmation yet from the EEOC judge on whether Special Masters will be used to review a number of the claims. Various parties, including USPS, objected to terms of the judge’s order, and it is our understanding that the judge is still considering those objections and possible changes to her plan to proceed. We continue to work with the judge to move this case forward toward a final resolution. We will provide an update on this website when we learn more about the judge’s decision regarding the process moving forward, and any other significant updates in the case. Thank you for all of your patience.

Status Update

The Judge issued an important order today approving the use of Special Masters to assist the EEOC in reviewing the 28,000+ disputed claims in this case. Federal courts commonly use Special Masters to assist with adjudication of complex class actions. In this case, the EEOC will appoint five Special Masters who will each have broad discretion to recommend damages and relief for the claims presented to them.

Pursuant to today’s Order, 2,200+ claimant names will be presented to the Special Masters in approximately three months, representing the initial batch of claims for review and consideration by the Special Masters. After that, the Special Masters will have no more than one year to issue recommended damages and relief for each claim presented to them.

Thus, by the Fall of 2021, the EEOC will have a large volume of claim valuations for this case, which will accelerate the EEOC’s valuation of all the remaining claims. In addition, it is possible that the Special Masters’ valuation of 2,200+ claims will help the parties evaluate possible settlement of claims. In this way, today’s Order marks a significant advance toward individual relief awards for each claimant.

Today’s Order is somewhat complicated, and it is possible that the Judge will issue revisions as the process moves forward. Nevertheless, today’s Order reflects the Judge’s strong desire to move the process forward decisively.

Please continue to check this website for updates. Thank you for your cooperation and patience through this lengthy process.

Status Update

The Postal Service, as well as several other attorneys representing claimants, requested additional time to object to the Administrative Judge’s Order approving the use of Special Masters. (Our firms did not seek any such extension.) To accommodate the requesting parties, the Administrative Judge extended the deadline to object until August 28, 2020. We continue to take every action we can to ensure that this process moves forward as quickly as possible. Please continue to monitor the website for updates.