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ARNOLD v. POSTMASTER GEN.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


August 13, 1987

Clyde J. Arnold, Jr., et al., Plaintiffs,
v.
Postmaster General, Defendant; Charles Ray Netherton, et al., Plaintiffs, v. Postmaster General, Defendant

The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, United States District Judge

  I. INTRODUCTION AND BACKGROUND *fn1"

 This class action arises out of plaintiffs' challenge to the senior-first rule ("Rule") of the United States Postal Service's Career Path Policy ("CPP" or "Policy"). Pursuant to the senior-first rule, the Postal Service directs the most senior and oldest level 23 postal inspectors from the cities, towns and hamlets across the land to transfer to New York City and thirteen other major metropolitan areas. *fn2" Directing the most senior level 23 postal inspectors to transfer to major metropolitan areas adversely affects the older postal inspectors because the cost of living and housing in New York City and the other thirteen major metropolitan areas is significantly higher than in non-major metropolitan areas. Defendant knew that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, prohibits them from implementing policies, such as the Career Path Policy and its senior-first rule, that discriminate against persons because of their age. Nevertheless, defendant began to systematically transfer the most senior and oldest level 23 postal inspectors to major metropolitan areas on December 1, 1980.

 Plaintiffs successfully advance two theories in support of their claim that the senior-first rule violates the ADEA. First, plaintiffs establish that the senior-first rule had a disparate impact on postal inspectors 40 years of age and older. In its defense, defendant unpersuasively argues that the senior-first rule was implemented out of an alleged business necessity to alleviate the shortage of experienced postal inspectors in major metropolitan areas. Plaintiffs convincingly rebut defendant's alleged business necessity defense correctly arguing that defendant's need for experienced postal inspectors could be met by using a non-discriminatory random system.

 Plaintiffs' second claim is that the senior-first rule results in the disparate treatment of postal inspectors 40 years of age and above. Plaintiffs' statistical and antedotal testimony clearly raises an inference of discrimination on the basis of age. Defendant fails to proffer a legitimate, nondiscriminatory business reason for reassigning the most senior and older level 23 postal inspectors to the largest and most expensive cities. But, even if defendant's reason was legitimate and nondiscriminatory, plaintiffs proved that defendant's reason was a pretext to hide its discriminatory animus toward older postal inspectors.

 In addition to specifically addressing plaintiffs' two theories of disparate impact and disparate treatment, defendant contends that some of the plaintiffs waived their rights to challenge the senior-first rule under the ADEA when they were arbitrarily transferred under the Career Path Policy. Defendant says that these plaintiffs waived their rights by agreement. Plaintiffs properly assert that no such agreement was made and even if an agreement was made, it is void and unenforceable.

 Finally, defendant moves to dismiss plaintiffs Brady and Rittiner for failing to comply with the ADEA's notice requirements.

 By Order of this Court, the trial was bifurcated into a liability phase and a remedy phase. On May 20-22, 1987, the Court heard the liability phase of this case. Upon thorough consideration of the record, including the testimony, the exhibits, and the Court's judgment as to the credibility of the witnesses herein, the Court certifies this case as a Rule 23(b)(2) class action, grants defendant's motion to dismiss plaintiffs Brady and Rittiner as class representatives, but denies defendant's motion to dismiss Brady and Rittiner as class members, and finds that the plaintiffs did not waive their rights under the ADEA when they were transferred pursuant to the senior-first rule. More importantly, the Court finds that plaintiffs have proved that the senior-first rule violates the ADEA under both a theory of disparate impact and disparate treatment. Accordingly, the Court will issue an order of even date herewith consistent with the Opinion herein.

 A. The United States Postal Inspection Service

 There are approximately 1900 postal inspectors located in the United States and Puerto Rico responsible for protecting the United States mail, postal employees and mail system. These postal inspectors are part of the Postal Inspection Service, which is the law enforcement and audit arm of the United States Postal Service. See 39 U.S.C. §§ 404(a)(7) & 2008(d). Incident to its power to investigate criminal offenses, the Postal Inspection Service is charged with enforcing approximately 65 separate statutory sections of the United States Code. See Defendant's Exhibit ("DX") 3.

 The Postal Inspection Service is administered by the Chief Postal Inspector, who reports directly to the Postmaster General. From 1979 through 1985, Kenneth Fletcher was Chief Postal Inspector until replaced by Charles Clauson, who holds the position today. Reporting to the Chief Postal Inspector are Assistant Chief Postal Inspectors, who oversee Regional Chief Postal Inspectors. Each region is comprised of Divisions headed by an Inspector-in-Charge. In 1982, the 17 Divisions were reorganized to form 39 Divisions. Each division is further divided into domiciles.

 Except for the period between 1970 and 1984, postal inspectors have been recruited from within the Postal Service, and after 1984 have been required to have a college degree. See DX 7. Postal Inspection Service regulations require postal inspectors to relocate when lawfully and legitimately dictated by the needs of the Service. See DX 10. To be hired, each postal inspector must state that he or she is willing to relocate pursuant to a lawful policy to anyplace in the continental United States, Puerto Rico, Alaska and Hawaii. See DX 7 & 11A-2. Importantly, these relocation requirements do not mention the Age Discrimination in Employment Act or that a transfer policy, such as the senior-first rule, must comply with the ADEA, or that signing such statements constitutes a waiver of any rights under the ADEA. See id.

 After 11 weeks of training in Potomac, Maryland, see DX 7, postal inspectors spend one year as a level 17 postal inspector. They then spend one year at level 19 and two years at level 21 before being promoted to level 23. *fn3" The primary difference between level 21 and level 23 does not stem from familiarity with the various tasks postal inspectors perform, but from the procedure by which postal inspectors are assigned work. Level 21 postal inspectors receive miscellaneous assignments spanning four functional areas, which include fraud and prohibited mailings, audit, external crimes (crimes committed against the Postal Service by non-employees), and internal crimes (crimes committed against the Postal Service by employees). Thus, level 21 postal inspectors are familiar with all four functional areas. Level 23 postal inspectors, however, specialize in one functional area, and receive assignments only in that one area.

 B. The United States Postal Inspection Service's Career Path Policy

 In response to a shortage of experienced postal inspectors in the fourteen major metropolitan areas, particularly New York City, the United States Postal Inspection Service instituted the Career Path Policy on December 1, 1980. See Plaintiffs' Exhibit ("PX") 16. The Policy has three means of effecting five year reassignments to major metropolitan areas -- voluntary level 23 lateral reassignments, voluntary level 21 lateral reassignments and involuntary directed transfers of the most senior level 23s in the nation. See PX 16. Plaintiffs challenge only this latter component of the Policy otherwise known as the senior-first rule because it transfers the older postal inspectors first. To fully understand why the senior-first rule violates the ADEA and why defendant does not have a legitimate need for the senior-first rule it is necessary to consider the aspects of the Career Path Policy not challenged by plaintiffs.

 The first aspect of the Policy not challenged here is the voluntary level 23 lateral reassignment. A voluntary level 23 lateral reassignment occurs when a level 23 postal inspector volunteers to serve five years in a major metropolitan area with a vacancy. If more than one level 23 postal inspector bids on a given vacancy, the postal inspector who bid for the vacancy first is awarded the lateral reassignment, regardless of the relative seniority of the competing bidders. See PX 16.

 The second aspect of the Career Path Policy which is not challenged is that permitting voluntary level 21 lateral reassignments. If a vacancy is not filled by a voluntary level 23 lateral reassignment, the Postal Inspection Service advertises the vacancy among level 21 postal inspectors. Level 21 postal inspectors may then volunteer for a lateral reassignment as a level 21 postal inspector or bid on a level 23 vacancy. See Defendant's Proposed Findings of Fact ("DF") para. 38. When more than one level 21 postal inspector bids on a level 23 vacancy, the most qualified bidder is reassigned. See PX 16.

 The third aspect of the Career Path Policy that is being challenged here can be described as follows. If a vacancy is not filled by a voluntary level 21 or level 23 lateral reassignment, the Postal Inspection Service directs the most senior eligible level 23 postal inspector in the nation to serve five years in the major metropolitan area with the vacancy. See PX 16. Although level 23 postal inspectors specialize in one of four functional areas, the senior postal inspector's area of expertise is not considered when directing transfers. Seniority is the sole consideration in the directed transfers under attack in the case herein. As indicated, plaintiffs challenge this senior-first rule of the directed transfer component of the Policy.

 The Career Path Policy has certain exemptions which are also not challenged here. These exemptions are relevant because they determine whether a postal inspector is subject to the senior-first rule. Whether a postal inspector is eligible to receive a directed transfer depends on whether he or she appears on the directed transfer list of level 23 postal inspectors or is exempt from that list. All level 23 postal inspectors are ranked on the directed transfer list in order from the most senior to the least senior with the following exceptions: 1) postal inspectors within five years of retirement eligibility are permanently exempt; 2) postal inspectors appointed before December 15, 1980 are permanently exempt (this would have exempted all 39 named plaintiffs but for the fact that this exemption was not created until September 23, 1985, after this litigation began); 3) postal inspectors who have physically relocated to a new residence as a result of an official reassignment or promotion are temporarily exempt for two years, and if reassigned to Hawaii, Alaska, or Puerto Rico, are temporarily exempt for three years; 4) postal inspectors currently assigned to major metropolitan areas are temporarily exempt as long as they are assigned to the major metropolitan area; and 5) postal inspectors who have served five years in a major metropolitan area at level 23 or level 24 are permanently exempt. See PX 16. As postal inspectors become exempt or their temporary exemptions expire, the composition of the pool of postal inspectors eligible for directed transfers changes. Consequently, the exemptions cause a particular postal inspector's rank on the directed transfer list to change from day to day.

 II. PROCEDURAL HISTORY

 Three groups of plaintiffs filed requests for administrative relief with defendant and later with the Equal Employment Opportunity Commission ("EEOC"). The Court will describe those three groups and their status. This description is set forth so that the chronology of this case can be understood, but the net effect is that all three groups are part of the certified class in this case.

 Almost two years after the implementation of the Career Path Policy in December of 1980, Charles Netherton filed a class action on behalf of himself and other similarly situated Postal Inspectors in the United States District Court for the Middle District of Florida. See Netherton v. United States Postal Service, Civil Action 82-504-ORL-CIV-R (filed Sept. 28, 1982 M.D. Fla.). Upon filing the lawsuit, Mr. Netherton moved for a temporary restraining order to enjoin the Postal Service from directing him to transfer to New York City. On October 1, 1982, Mr. Netherton's motion was denied in that court. Subsequently, defendant filed a motion to dismiss or for summary judgment, which on June 17, 1983, was also denied. The Netherton case was then stayed pending the conclusion of plaintiffs' administrative proceedings before the Equal Employment Opportunity Commission ("EEOC").

 In July of 1983 the complaints examiner issued a decision in the Netherton case recommending that the Career Path Policy violated the ADEA. On August 30, 1983, the Postal Service rejected the recommendation of the complaints examiner and found that the Policy did not violate the ADEA. A motion to lift the stay was filed by defendant on September 6, 1983 and denied on October 12, 1983. On September 20, 1983, the Netherton plaintiffs filed a consolidated appeal with the EEOC of the Postal Service's final decision.

 On March 25, 1985, the EEOC dismissed the Netherton plaintiffs' appeals because the United States District Court for the Middle District of Florida had retained jurisdiction over their claims. Defendant then moved to dismiss the second group of plaintiffs' appeals to the EEOC. Defendant's motion is still pending before the EEOC. Cf. Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) (any action taken pursuant to a regulation is independent of an employee's right to file a civil action and can be simultaneous with the civil action).

 During this time, postal inspectors Arnold, Bell, D. Brown, Garland, LeBlanc, Nelson and Syverson filed administrative complaints challenging the senior-first rule as a violation of the ADEA. In September of 1984, the complaints examiner again issued a recommended decision that the Policy violated the ADEA. Again, the Postal Service rejected the complaints examiner's recommendation. On October 29, 1984, this second group of postal inspectors appealed the Postal Service's final decision to the EEOC. That appeal is still lying dormant before the EEOC. Cf. Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) (any action taken pursuant to a regulation is independent of an employee's right to file a civil action and can be simultaneous with the civil action).

 Meanwhile, a third group of plaintiffs, Bottita, R. Brown, Hill, Hoffman, Hurlbut, Jones, Kamm, Kennerson, Lingle, Manning, Martinez, McClelland, Parkinson, Post, Reinardy, Scott and Thompson, also filed administrative complaints contesting the senior-first rule on the ground that it violates the ADEA. In a decision dated May 20, 1985, the Postal Service cancelled the Administrative complaints of this third group of plaintiffs. These plaintiffs' subsequent appeals to the EEOC are also still pending. Cf. Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) (any action taken pursuant to a regulation is independent of an employee's right to file a civil action and can be simultaneous with the civil action).

 On June 11, 1985, the Netherton plaintiffs moved the United States District Court for the Middle District of Florida to dismiss their case without prejudice. Defendant opposed plaintiffs' motion and moved to lift the stay. On June 25, 1985, plaintiffs' motion to dismiss was denied and defendant's motion to lift the stay was granted. On or about September 4, 1985, defendant moved the United States District Court for the Middle District of Florida to certify the Netherton case as a class action. That motion remained pending until the parties consented to a conditional class certification at the May 18, 1987 pretrial conference before this Court.

 On August 13, 1985, the second and third groups of plaintiffs filed suit in the United States District Court for the District of Columbia. See Arnold v. United States Postal Service, 649 F. Supp. 676 (D.D.C. 1986). Four additional plaintiffs joined the second and third groups of plaintiffs in the Arnold lawsuit -- Rittiner, Brady, Jas and Cyryt. Defendant's motion to dismiss plaintiffs Brady and Rittiner as class representatives is addressed herein.

 Six days after the Arnold case was filed, the Netherton plaintiffs moved to transfer the Netherton case from the United States District Court for the Middle District of Florida to the United States District Court for the District of Columbia. By Order dated August 8, 1986 the Netherton case was transferred, and on September 16, 1986, the Netherton and Arnold cases were consolidated by consent of the parties pursuant to Federal Rule of Civil Procedure 42(a).

 After the Netherton and Arnold cases were consolidated, cross motions for summary judgment and defendant's motion to strike all of plaintiffs' requests for damages other than backpay were considered. In an Opinion dated December 9, 1986, this Court denied the cross motions for summary judgment because there were genuine issues of material fact as to whether the senior-first rule constituted disparate treatment of plaintiffs on the basis of age and whether the senior-first rule had a disparate impact on postal inspectors 40 years of age and above. See Arnold v. United States Postal Service, 649 F. Supp. 676 (D.D.C. 1986).

 Upon consideration of defendant's motion to strike plaintiffs' request for all relief beyond backpay, the Court denied, without prejudice, defendant's motion to strike, reserving final judgment on remedies until and if the Court finds defendant liable. See id. at 684. Consistent with the order denying defendant's motion to strike, by Order of April 28, 1987, the Court bifurcated the liability and remedy stages of the trial.

 III. PROCEDURAL RULINGS

 A. Class Certification Is Appropriate Under Rule 23(b)(2) and Local Rule 203.

 1. Both Parties Sought Class Certification.

 Whether class certification is appropriate in this case has been an issue from the day Mr. Netherton filed the first of these consolidated cases. See Complaint, Netherton v. United States Postal Service, Civil Action 82-504-ORL-CIV-R (filed Sept. 28, 1982 M.D. Fla.). In his complaint, Mr. Netherton purported to represent a class

 

comprised of a group of persons who are or who have been senior level 23 non-exempt Postal Inspectors, age 40 and above, who have been, are being, or may be adversely affected by the forced transfer provisions of the Inspector Career Path Policy. The class includes all Postal Inspectors presently on the seniority list of non-exempt Level 23 Postal Inspectors used by the Chief Inspector for the purpose of making forced transfers under the policy . . . . It includes those Level 23 Postal Inspectors above the age of 40 who have only a temporary exemption to the policy. The class further includes the senior non-exempt Level 23 Postal Inspectors who have been previously injured under the policy or who have preserved their right to obtain relief by the previous filing or attempted filing of individual complaints of Age Discrimination.

 Id. at 2-3, para. 5. On or about September 4, 1985, the issue of class certification was again raised, but this time by defendant. Defendant moved the United States District Court for the Middle District of Florida to certify the following class pursuant to Rule 23 of the Federal Rules of Civil Procedure:

 

Present, former, or future Postal Inspectors who have, or will have, timely filed administrative complaints pursuant to 29 C.F.R. Part 1613 asserting that the Postal Inspection Service Career Path Policy adversely impacted them by causing their transfer or resignation from the Inspection Service when they were 40 years of age or older in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a.

 Motion for Certification, Netherton v. United States Postal Service, Civil Action 82-504-ORL-CIV-R (filed Sept. 4, 1985 M.D. Fla.). When the Netherton case was transferred to this Court on August 8, 1986, the United States District Court for the Middle District of Florida had not decided either plaintiffs' or defendant's requests for class certification. Accordingly, this Court inherited the class certification issue.

 2. By Consent, the Parties Agreed to Tentative Class Certification Under Rule 23(b)(2) to Include Postal Inspectors Affected by the Career Path Policy.

 At the May 18, 1987 pre-trial conference, upon consent of the parties, the Court granted defendant's motion for class certification under Rule 23(b)(2). By oral stipulation, the parties defined the class to include

 

All postal inspectors of the United States Postal Service between December 1, 1980 and September 1, 1985 who were, are, or have been affected by the Career Path Policy.

 3. Plaintiffs Only Challenge the Senior-First Rule of the Career Path Policy; Therefore, the Court Will Redefine the Class to Comprise Only Postal Inspectors Affected by the Senior-First Rule Because Only They Have Standing to Challenge the Rule.

 Notwithstanding that the class was tentatively certified upon consent of the parties to include postal inspectors affected by the "Career Path Policy," plaintiffs only challenge the senior-first rule of that Policy. To join the class each class member must have standing to challenge the senior-first rule. See Foster v. Center Township of LaPorte County, 798 F.2d 237, 244 (7th Cir. 1986); Slaughter v. Levine, 598 F. Supp. 1035, 1041 (D. Minn. 1984), aff'd in part and rev'd on other grounds, 801 F.2d 288 (8th Cir. 1986) (citing Lamb v. Hamblin, 57 F.R.D. 58, 60-61 (D. Minn. 1972); Metropolitan Area Housing Alliance v. United States Department of Housing and Urban Development, 69 F.R.D. 633, 633 (D. Ill. 1976)); McElhaney v. Eli Lilly & Co., 93 F.R.D. 875, 878 (D.S.D. 1982).

 The tentative class comprising postal inspectors affected by the Career Path Policy is overbroad in that it includes postal inspectors affected by parts of the Career Path Policy beyond the senior-first rule, such as the voluntary level 21 and 23 lateral reassignment provisions. Because postal inspectors not injured by the senior-first rule do not have standing to challenge that rule, the Court will exercise its authority to limit the class to include only postal inspectors who have been affected by the senior-first rule. See Sears v. Atchison, Topeka & Santa Fe Railway, 749 F.2d 1451, 1456 (10th Cir. 1984); Slaughter, 598 F. Supp. at 1041; Graham v. Heckler, 573 F. Supp. 1573, 1581 (N.D.W. Va. 1983); Lamb, 57 F.R.D. at 60-61; Metropolitan Area Housing Alliance, 69 F.R.D. at 633. Those with standing include senior postal inspectors who because of the senior-first rule were directed to transfer, resigned to avoid a directed transfer, or volunteered for lateral reassignment to avoid a directed transfer, or others adversely affected by the senior-first rule. Accordingly, the Court redefines the class to include the following postal inspectors:

 

All postal inspectors of the United States Postal Service between December 1, 1980 and September 1, 1985 who were, are, or have been affected by the senior-first rule of the Career Path Policy.

 4. Rule 23 Applies to Class Actions Against the Federal Government, Rather Than the ADEA's Opt-In Requirement Applicable to Private Employers.

 Discrimination on the basis of age is prohibited by two distinct sections of the ADEA -- section 623(a)(1) prohibits discrimination by private employers and section 633a(a) prohibits discrimination by federal employers. On April 6, 1978, the section prohibiting age discrimination by federal employers was amended as follows:

 

Any personnel action of any department, agency, or other entity referred to in subsection [633a(a)] shall not be subject to, or affected by, any provision of the [ADEA], other than the provisions of [subsection 631(b)] and the provisions of [section 633a].

 29 U.S.C. § 633a(f).

 Prior to the 1978 amendment, ADEA actions against employers were "enforced in accordance with the powers, remedies, and procedures . . . of the Fair Labor Standards Act ["FLSA"]," 29 U.S.C. § 626(b), which has an affirmative opt-in requirement for class actions: no person may become a plaintiff "unless he gives his consent in writing to become such a party." 29 U.S.C. § 216. This opt-in requirement is incorporated through section 626(b) of the ADEA and is mutually exclusive with Rule 23.

 Since the 1978 amendment, providing that only subsection 631(b) and section 633a of the ADEA apply to federal employers, the FLSA's affirmative opt-in requirement for class actions does not apply to federal employees. See Moysey v. Andrus, 481 F. Supp. 850 (D.D.C. 1979), appeal withdrawn, U.S.C.A. No. 80-2174 (D.C. Cir. Sept. 25, 1980). Accordingly, this Court in Moysey certified the class under Rule 23(b)(1)(B) and 23(b)(2). Id. at 854-55; see also Christie v. Marston, 19 FEP 87 (N.D. Ill. 1979) (Rule 23 class action against Federal Home Loan Bank Board). Class certification under Rule 23 is similarly appropriate in this case.

 5. Class Certification Is Appropriate Under Rule 23 and Local Rule 203.

 Rule 23(a) and Local Rule 203 of this Court permit class certification only if (1) the class is so numerous as to make joinder impracticable, (2) there are common questions of law and fact, (3) the claims of the representative parties are typical of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a); Local Rule 203.

 The Court can be certain that the class will include no less than the 39 plaintiffs named in the Netherton and Arnold complaints and may, based on defendant's representation, encompass as many as several hundred plaintiffs. In that joinder would be impracticable with a class of 39 to a few hundred plaintiffs, the numerosity requirement of Rule 23(a)(1) is satisfied.

 As defendant's motion for class certification suggests and the complaints herein allege, all plaintiffs challenge the senior-first rule of the Career Path Policy on the ground that it violates the Age Discrimination in Employment Act. Accordingly, there are common questions of law and fact as required by Rule 23(a)(2).

 Thirty-nine plaintiffs are named in the two complaints. Each of these representative plaintiffs claims to have been affected by the senior-first rule and challenges the Rule under the ADEA. The class these plaintiffs represent comprises all postal inspectors affected by the senior-first rule. Thus, the Court finds that Rule 23(a)(3)'s prerequisite that the claims of the representative parties be typical is satisfied.

 Rule 23(a)(4) requires the representative parties to fairly and adequately protect the interests of the class. This requirement has two components. First, the representatives' interests must not be antagonistic to the interests of the class. This is not the case here, as the representatives and the class both want the Court to find that the senior-first rule violates the ADEA. Secondly, class counsel must be diligent and competent. That class counsel satisfies this requirement is borne out by the record. Thus, Rule 23(a)(4) is met.

 Finally, Rule 23(b)(2) permits class certification only if the party opposing the class has acted against the whole class, making injunctive or declaratory relief against the defendant appropriate for the class as a whole. See Fed. R. Civ. P. 23(b)(2). At issue here is a rule that, by operation, applies to all senior postal inspectors unless specifically exempted. Because defendant has acted against the protected class as a whole, certification under Rule 23(b)(2) is appropriate. Therefore, in accordance with Federal Rule of Civil Procedure 23 and Local Rule 203, the Court finds that a Rule 23(b)(2) class action is appropriate and proper in this case.

 B. Although Most of the Named Plaintiffs Met the ADEA's Notice Requirements, Defendant's Motion to Dismiss Brady and Rittiner as Class Representatives Must be Granted Because They Did Not Satisfy the Notice Requirements; Brady and Rittiner May, However, be Eligible for Relief as Members of the Protected Class and, Therefore, Defendant's Motion to Dismiss Brady and Rittiner as Class Members Is Denied.

 To bring an ADEA action against a federal employer a federal employee must, within 180 days from the alleged discriminatory act, give the EEOC a 30 day notice of an intention to sue. See 29 U.S.C. § 633a(d); McKinney v. Dole, 765 F.2d 1129, 1140-41 (D.C. 1985); Macellaro v. Goldman, 643 F.2d 813 (D.C. Cir. 1980). Alternatively, a federal employee may choose to file a complaint with the EEOC. See 29 U.S.C. § 633a(d); Dodson v. United States Army Finance and Accounting Center, 636 F. Supp. 894, 896 (S.D. Ind. 1986).

 Defendant concedes that each of the plaintiffs filed a timely administrative complaint challenging the senior-first rule as a violation of the ADEA, with the exception of plaintiffs Brady and Rittiner. Mr. Brady was ordered to transfer on October 5, 1983 and transferred on January 9, 1984. Rather than file a notice of intent to sue, Mr. Brady filed an administrative complaint on January 13, 1984. On May 3, 1984 the United States Postal Service rejected Mr. Brady's complaint because it was not timely filed. Mr. Brady did not appeal that action to the EEOC within 20 days or file a civil suit within 30 days as required by the applicable regulations. See 29 C.F.R. § 1613.281(a) (upon receipt of notice of final agency action on the complaint, the complainant may appeal to the EEOC within 20 days or file a civil action within 30 days). Accordingly, defendant's motion to dismiss Mr. Brady as a class representative must be granted with the caveat that plaintiff Brady may still obtain relief as a class member.

 Mr. Rittiner was directed to transfer on September 3, 1981. He filed an administrative complaint and it was rejected on June 8, 1982. Mr. Rittiner also chose not to appeal the agency's decision to the EEOC within 20 days or to file a civil action within 30 days. See 29 C.F.R. § 1613.281(a) (upon receipt of notice of final agency action on the complaint, the complainant may appeal to the EEOC within 20 days or file a civil action within 30 days). Accordingly, defendant's motion to dismiss Mr. Rittiner as a class representative must be granted with the caveat that plaintiff Rittiner may still obtain relief as a class member.

  That plaintiffs Brady and Rittiner cannot remain named as class representatives does not preclude them from obtaining relief under the ADEA as class members in a Rule 23 class action. In an ADEA class action against a private employer, courts have held that consenting class members need not individually comply with the charge-filing requirements. See, e.g., Mistretta v. Sandia Corp., 639 F.2d 588, 593-95 & n.3 (10th Cir. 1980); Bean v. Crocker National Bank, 600 F.2d 754, 759 (9th Cir. 1979); Russell v. Curtin Matheson Scientific, Inc., 17 FEP 845, 848 (S.D. Tex.), app. den., 18 FEP Cas 866 (5th Cir.), cert. denied, 439 U.S. 972, 58 L. Ed. 2d 432, 99 S. Ct. 466 (1978). Similarly, under Title VII, where class actions are maintained under Rule 23, only the named plaintiff need satisfy the charge-filing requirements. See, e.g., Inda v. United Airlines, 565 F.2d 554, 559 (9th Cir. 1977), cert. denied, 435 U.S. 1007, 56 L. Ed. 2d 388, 98 S. Ct. 1877 (1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3rd Cir.), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). Therefore, since this case is a Rule 23 class action under the ADEA, the Court concludes that plaintiffs Brady and Rittiner are entitled to relief as class members if they were employed by the United States Postal Service between December 1, 1980 and September 1, 1985 and affected by the senior-first rule of the Career Path Policy.

 C. All of the Named Plaintiffs Have Standing to Challenge the Senior-First Rule.

 The ADEA prohibits "all [discriminatory] personnel actions affecting employees . . . who are at least 40 years of age," 29 U.S.C. § 633a(a) (emphasis added), and gives standing to sue to all "aggrieved persons." 29 U.S.C. § 633a(c). All 39 named plaintiffs were at least 40 years of age when they were adversely affected by the Career Path Policy. Each was ranked on the directed transfer list, placing them in imminent jeopardy of being directed to transfer. Except for Albert Brady, all the named plaintiffs were at least 40 years of age when they were affected, see 29 U.S.C. § 633a(c) (aggrieved persons may sue), or injured, see, e.g., Synar v. United States, 626 F. Supp. 1374, 1380 (D.D.C. 1986) (actual or threatened injury necessary for standing), by the senior-first rule because they received orders directing them to transfer to a major metropolitan area, or resigned or volunteered for a lateral reassignment to avoid a directed transfer. See PX 2-15, 51 & 52.

 Plaintiffs Arnold, Brady, R. G. Brown, Caldwell, Day, DeFord, Erwin, Garland, Gholson, Hermanson, Hill, Hoffman, Jas, Jones, LeBlanc, Lingle, Manning, Martinez, Nelson, Netherton, Post, Reed, Rittiner, Scott, Syverson, and Tangney received directed transfers to major metropolitan areas when they were 40 years of age and above. See PX 51 & 52. Therefore, they were 40 years of age and older when they were adversely affected by the Policy.

 Plaintiffs Bell, D. E. Brown, Bye, Kamm, Parkinson, Reinardy, and Thompson resigned when they were 40 years of age or older to avoid a directed transfer. Each of these plaintiffs was in imminent jeopardy of receiving a directed transfer because of their ranking on the seniority list. See PX 2-15, 44-50. All of these plaintiffs had family and financial restraints that compelled them to resign to avoid the adverse effects of a directed transfer.

 When plaintiffs Bottita, Cyryt, Helmer, Hurlbut, Kenerson, and McClelland were 40 years of age and older, they were forced to volunteer for a lateral reassignment to an undesirable major metropolitan area to avoid a directed transfer to an even less desirable major metropolitan area. Each of the plaintiffs who volunteered for a lateral reassignment did so because they were approaching the point on the directed transfer seniority list where a directed transfer was imminent. See PX 2-15, 38-43. All of these plaintiffs had family and financial restraints that compelled them to volunteer for transfer to avoid the adverse effects of a directed transfer.

 Albert Brady was 39 when he received a directed transfer to New York. Although Mr. Brady was not 40 years of age when he was notified that he would be directed to transfer, he was 40 years of age when he was affected by a discriminatory personnel action, the senior-first rule. Mr. Brady was reassigned to New York City for five years from the day he reported for duty; he was 40 years old when he reported for duty. See PX 16 & 51. But for the Rule, Mr. Brady would not have been transferred and serving five years in New York City. Therefore, the Court finds that because Mr. Brady was affected by the senior-first rule when he was 40 years of age, he has standing to challenge that Rule. See 29 U.S.C. § 633a(c) (aggrieved persons may sue), or injured; see also, Synar v. United States, 626 F. Supp. 1374, 1380 (D.D.C. 1986) (actual or threatened injury necessary for standing).

 IV. WHEN PLAINTIFFS "ACCEPTED" TRANSFERS UNDER THE CAREER PATH POLICY, THEY DID NOT WAIVE THEIR RIGHTS TO CHALLENGE THE SENIOR-FIRST RULE AS A VIOLATION OF THE ADEA.

 Defendant's cross-examination of plaintiffs attempted to suggest that plaintiffs waived their rights to challenge transfers as a violation of the ADEA because plaintiffs knew that arbitrary transfers could be made at any time to any place when they became postal inspectors. While there is no question that plaintiffs knew they might be arbitrarily transferred, there is also no question that plaintiffs did not knowingly and voluntarily agree to be systematically transferred pursuant to a senior-first rule that unlawfully discriminated against them because of their age. Indeed, if defendant had transferred postal inspectors on a random basis, the disparate impact of the senior-first rule would have been avoided because a random system does not select the oldest postal inspector for transfer first.

 That plaintiffs might be transferred at any time to any place to serve the needs of the Inspection Service is not a circumstance or fact which supports a factual or legal conclusion that it was a knowing and voluntary waiver of plaintiffs' prospective rights under the ADEA. See United States EEOC v. County of Calumet, 686 F.2d 1249, 1254 (7th Cir. 1982) (employees do not waive rights under the ADEA where agreement does not expressly make reference to the ADEA or waive their rights under the ADEA). Even if it could be said that plaintiffs agreed to waive their rights by agreeing to transfer, such an agreement is void and unenforceable because it is contrary to public policy. See, e.g., Evans v. Jeff, 475 U.S. 717, 89 L. Ed. 2d 747, 106 S. Ct. 1531 (1986); Southland Corp. v. Keating, 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984); Restatement (Second) of Contracts sec. 178 (1981). Therefore, the Court finds that because defendant is prohibited by the ADEA from transferring plaintiffs pursuant to a policy that discriminates on the basis of age, plaintiffs may challenge the Rule as a violation of the ADEA.

 V. THE SENIOR-FIRST RULE OF THE CAREER PATH POLICY VIOLATES THE AGE DISCRIMINATION IN EMPLOYMENT ACT BOTH UNDER A THEORY OF DISPARATE IMPACT AND DISPARATE TREATMENT.

 Section 633a of the Age Discrimination in Employment Act ("ADEA"), which applies to federal employers, provides that

 

all personnel actions affecting employees . . . who are at least 40 years of age . . . in the United States Postal Service . . . shall be made free from any discrimination based on age.

 29 U.S.C. § 633a(a); see also 29 U.S.C. § 631(b) (protected class includes individuals at least 40 years of age). Plaintiffs advance two theories to prove that the senior-first rule discriminates against them based on age. First, plaintiffs contend that the senior-first rule has a disparate impact on postal inspectors 40 years of age and above. Plaintiffs' statistics establish that the adverse effects of the senior-first rule, which involuntarily transfers the oldest postal inspectors to cities with high costs of living, or causes them to resign or volunteer for lateral reassignment to avoid an involuntary transfer, falls more harshly on postal inspectors 40 years of age and older than on postal inspectors under 40 years of age. Although defendant attempts to justify the senior-first rule by arguing that it has a business need for the most senior postal inspectors in the major metropolitan areas, the evidence before the Court clearly shows that defendant's real business need was for level 21 or higher postal inspectors of any seniority. Moreover, plaintiff convincingly proved that even if defendant's business need was for senior postal inspectors, that need could have easily been met by a nondiscriminatory, random transfer system.

 Second, plaintiffs show that the senior-first rule constitutes disparate treatment because defendant knew that age and seniority were correlated when implementing the senior-first rule of the Career Path Policy and, therefore, intentionally subjected plaintiffs to disparate treatment because of their age by transferring them to cities with high costs of living. Defendant was unable to proffer a legitimate, nondiscriminatory reason for using the senior-first rule because no such reason exists. Indeed, plaintiffs have proved that defendant's alleged reason for the senior-first rule was pretextual and only served the purpose of masking defendant's unlawful motives. Therefore, upon consideration of all the evidence, the Court finds that Plaintiffs succeed on both theories.

 A. The Senior-First Rule Has A DISPARATE IMPACT on Postal Inspectors 40 Years of Age and Older.

 It is well settled that a violation of the ADEA may be proved by showing that an employment practice, such as the senior-first rule, which is involved in this case, has a disparate impact on a protected class, namely postal inspectors 40 years of age and above. See EEOC v. Borden's, Inc., 724 F.2d 1390, 1394-95 (9th Cir. 1984); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 690 (8th Cir. 1983); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980), cert. denied, 451 U.S. 945, 68 L. Ed. 2d 332, 101 S. Ct. 2028 (1981); Arnold v. United States Postal Service, 649 F. Supp. 676, 679-81 (D.D.C. 1986); EEOC v. Westinghouse Electric Corp., 632 F. Supp. 343, 370 (E.D. Pa. 1986); EEOC v. Governor Mifflin School District, 623 F. Supp. 734, 738-41 (E.D. Pa. 1985); see also Schmid v. Frosch, 680 F.2d 248, 249-50 (D.C. Cir. 1982) (implicitly approving a disparate impact theory); Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1323 (11th Cir. 1982) (same). To prove age discrimination under a disparate impact theory, plaintiffs need only establish that the senior-first rule disproportionately impacts, or falls more harshly on, postal inspectors 40 years of age and above. See Leftwich, 702 F.2d at 690; Geller, 635 F.2d at 1032. Such an impact is typically evidenced, as was presented in this case, by statistics from which discrimination may be inferred. See, e.g., Palmer v. Shultz, 815 F.2d 84, 91 n.6 (D.C. Cir. 1987) (statistical analysis must focus on appropriate source pool, which includes only those qualified for promotion, or in this case, those eligible for transfer); Segar v. Smith, 738 F.2d 1249, 1274 (1984) (same), cert. denied, 471 U.S. 1115, 86 L. Ed. 2d 258, 105 S. Ct. 2357 (1985); Leftwich, 702 F.2d at 690; Geller, 635 F.2d at 1032. Moreover, unlike a disparate treatment case, plaintiffs need not prove discriminatory motive and animus in a disparate impact case. E.g., Leftwich, 702 F.2d at 690; Geller, 635 F.2d at 1032.

 1. The Plaintiffs Have Established That the Senior-First Rule Is a Rule That Falls More Harshly on Postal Inspectors 40 Years of Age and Over.

 a. The Senior-First Rule Is a Discriminatory Employment Policy.

 Defendant argues in its post-trial brief that plaintiffs' disparate impact claim must fail because plaintiffs do not challenge an appropriate employment practice which disparately impacts them. See Defendant's Post-Trial Brief at 2-3 (filed June 9, 1987). Plaintiffs, however, have made it clear since this lawsuit was filed that they challenge the discriminatory senior-first rule of the Career Path Policy. See Complaint, Netherton v. United States Postal Service, Civil Action 82-504-ORL-CIV-R (filed Sept. 28, 1982 M.D. Fla.); Complaint, Arnold v. United States Postal Service, 649 F. Supp. 676 (D.D.C. 1986). It is defendant who has tried to mischaracterize plaintiffs' challenge to encompass the entire Career Path Policy in order to dilute the adverse impact that the senior-first rule has on plaintiffs. Plaintiffs have never challenged the aspects of the Policy permitting postal inspectors to volunteer for lateral reassignment.

 b. Defendant's Senior-First Rule Has a Statistically Significant DISPARATE IMPACT on Plaintiffs.

 i. The Relevant Time Period Is From December 1, 1980 to September 1, 1985.

 Plaintiffs were subject to the senior-first rule from its implementation on December 1, 1980 until September 23, 1985 when the Postal Service exempted from directed transfers all those who were postal inspectors on December 1, 1980. See PX 16-E. By consent of the parties, the Court has certified a class comprising postal inspectors employed by the Postal Service between December 1, 1980 and September 1, 1985. This time frame was agreed to by counsel for the parties. Accordingly, the relevant time period for the purposes of analyzing the adverse effects of the senior-first rule on plaintiffs is from December 1, 1980 until September 1, 1985. See Palmer v. Shultz, 815 F.2d at 91 n.6; Segar v. Smith, 738 F.2d at 1274.

 ii. The Effect of the Senior-First Rule Is Most Accurately Reflected by Plaintiffs' Statistics.

 Experts for both parties presented a multiplicity of statistics. Notwithstanding the statisticians' consensus as to the accuracy of each others arithmatical calculations, they reached opposite conclusions. This difference of opinion requires the Court to decide which statistics are appropriate. See Palmer v. Shultz, 815 F.2d at 91 n.6; Segar v. Smith, 738 F.2d at 1274. For the reasons that follow the Court finds that plaintiffs' statistics best reflect the actual effect of the senior-first rule on plaintiffs.

 First, plaintiffs' calculations analyze the effect of the senior-first rule on those to whom the rule applies, namely, eligible, or non-exempt, level 23 postal inspectors. In contrast, defendant analyzes the effect of the rule on all postal inspectors, including those who are temporarily or permanently exempt from the senior-first rule. It defies common sense to measure the effect of a policy, such as the senior-first rule, on persons to whom the rule does not apply, but the defendant's statistics did just this. See Palmer v. Shultz, 815 F.2d 84, 91 n.6 (D.C. Cir. 1987) (statistical analysis must focus on appropriate source pool, which includes only those qualified for promotion, or in this case, those eligible for transfer); Segar v. Smith, 738 F.2d 1249, 1274 (1984) (same), cert. denied, 471 U.S. 1115, 86 L. Ed. 2d 258, 105 S. Ct. 2357 (1985). Therefore, the Court finds and accepts plaintiffs statistics as not only more credible but also because they are based on the appropriate source pool, which comprises only the postal inspectors eligible for a directed transfer during the relevant time period in this case.

 Defendant's inclusion of exempt postal inspectors in its statistical analysis is also erroneous. Because the ADEA protects all persons 40 years of age and above, the senior-first rule's discriminatory transfers of some level 23 postal inspectors cannot be justified by its exemption of other level 23 postal inspectors. Therefore, a relevant statistical comparison looks at the effect of the senior-first rule only on the persons subjected to the Rule, which plaintiffs' witness did provide and which defendant's statistician did not provide. Indeed, this is what plaintiffs' statistics do, as they show the effect of the senior-first rule only on postal inspectors eligible for directed transfers pursuant to the Career Path Policy Rule in question in this case.

 Another reason plaintiffs' statistics better reflect the effect of the senior-first rule is that they use "snap shot" data rather than "average" data. Snap shot data is better because in the instant case the average data does not accurately reflect the fluctuations in the pool of eligible postal inspectors which is reflected in the snap shot data. Because the exemptions caused the composition of the class of postal inspectors eligible for directed transfer to change from day to day, the data that most accurately reflects the composition or age-mix of the class of postal inspectors subject to directed transfers is that data collected on or about the dates when directed transfers were actually made. See PX 52 (listing dates when directed transfers were ordered). Thus, plaintiffs' snap shot data best reflects the real and adverse effects of the senior-first rule on the protected class.

  Defendant's use of average data *fn4" and the binomial distribution *fn5" is inappropriate because they do not accurately reflect the changing composition of the pool of postal inspectors eligible for directed transfer. An average is based on the premise that the pool of eligible postal inspectors is relatively stable, which was not the case here during the relevant period. See Cangelosi, Taylor and Rice, Basic Statistics, A Real World Approach at 30 (West 1979) (the disadvantage of the mean or average is that it will be overly influenced by extreme values). Such an assumption is inappropriate where the composition of the pool of postal inspectors eligible for directed transfer changes from day to day. Even Dr. Beckett, defendant's expert, admitted on cross examination that the averages he used did not reflect the actual number of postal inspectors 40 years of age and above located in non-major metropolitan areas.

  Similarly, the use of the binomial distribution is invalid where the pool of eligible postal inspectors changes daily since a precondition for using the binomial distribution is that the probability of an event occurring remain constant, or in the instant case, that the age-mix of the pool of eligible postal inspectors remain constant. Here the number of postal inspectors 40 years of age and greater eligible for directed transfers changes daily. Therefore, the use of average data and the binomial distribution is improper in these circumstances. See Cangelosi, Taylor and Rice, Basic Statistics, A Real World Approach at 30 (West 1979). That the use of snap shot data is more appropriate than average data is made clear by an example given by plaintiffs' expert, Dr. Mann. Assume on day 1 that ten directed transfers are to be ordered and that only ten postal inspectors are subject to transfer and are 40 years of age and above. Then, assume on day 2 that one directed transfer is to be ordered and that ten postal inspectors under 40 years of age are subject to transfer. 40 under 40 directed transfers Day 1 10 0 10 Day 2 0 10 1 TOTALS 10 10 11

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