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.