EEOC Upholds Class Action

(This article appeared in the May/June 2010 issue of The American Postal Worker magazine.)

Sue Carney, Director Human Relations Dept.

On May 30, 2008, in the case of Sandra McConnell et al v. United States Postal Service, an Administrative Judge (AJ) for the Equal Employment Opportunity Commission (EEOC) certified a class action complaint alleging that the USPS had discriminated against all rehabilitation and limited duty employees on the basis of disability when it implemented the National Reassessment Process. The complainant made numerous claims which the presiding AJ categorized into four broader complaints: The NRP fails to provide a reasonable accommodation; creates a hostile work environment; wrongfully discloses medical information; and has an adverse impact on disabled workers.

USPS Appeal

The Postal Service disputed the claims and appealed the certification, which defines class members as “all permanent rehabilitation and limited duty employees of the United States Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006, to present, allegedly in violation of the Rehabilitation Act of 1973.” The USPS asserted that the decision was in conflict with applicable legal authority and alleged that the class complaint failed to meet the class prerequisites of numerosity, commonality, typicality, and adequacy of representation for any of the claims presented.

The Postal Service argued that the only common thread was that all class members have been or will be reassessed, and maintained that any denial of reasonable accommodation should be heard on a case-by-case basis. Likewise, the agency argued that the “theoretical” claim that the NRP creates a hostile work environment would also have to be addressed on a case-by-case basis in the absence of a policy or practice promoting “severe and pervasive” workplace harassment.

The agency also asserted that no policy or practice had been identified regarding the charge that NRP wrongfully discloses medical information. And in a misleading attempt to demonstrate that reassessment does not typically result in “No Work Available” determinations, the USPS argued that only a “small percentage” of employees has fallen into this category. Finally, in an attempt to minimize its exposure, the Postal Service requested that the EEOC limit the class to rehab employees who worked in the Western New York District and were told there was no work available during the pilot phase of the NRP.

In its Jan. 14, 2010, ruling, the EEOC rejected the USPS appeal and ordered the Postal Service to notify all potential class members. Although the certification was upheld as proper, and the threshold issues were resolved, the validity of the complaints will remain undetermined until the Merits Phase of the process.

Meeting with the Litigators

Following the decision, I met with the attorneys for the class agent, and was informed that the Postal Service had been granted an extension to comply with the order because of the large number of potential class members. The law firm is attempting to ensure the notice is satisfactory and reaches everyone who is included in the class. I advised the attorneys that USPS figures indicate that more than 33,000 employees will need to be notified. I also emphasized that it is vital to include the APWU in the notification process to ensure no one is overlooked and that collective bargaining rights are not violated. Currently we are awaiting a copy of the finalized notice detailing what actions, if any, affected employees will have to take.

All employees who meet the definition of the class should automatically be included, even if they did not file EEOC complaints. In the interim, employees who feel discriminated against because of NRP activity can still file an EEOC complaint within 45 days of the discriminatory action. Filing will ensure that they are not overlooked and that their entitlement does not lapse if their fact circumstances differ from those specified in the EEOC case. However, this is unlikely due to the broad definition of the class members. The APWU agreed to remain available to the law firm for consultation as the case proceeds.

Documents about the case can be viewed on the Human Relations page of the APWU Web site at www.apwu.org.