Case 1:03-cv-01062-RJL-JMF Document 1 Filed 05/14/03 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRUCE C. HUBBARD, 7526 Newberry Lane, )

Lanham, MD 20706, JUDY M. SCHULD, 22669 )

Lenox Drive, Fairview Park, OH 44126, GRACE J. )

SHIRK-EMMONS, 1961 New Street, East

)

Petersburg, PA 17552, LUCY I. STIEGLITZ,

\

216 S.E. 33rd Street, Oklahoma City, OK 73129 CASE NUMBER

1: 0 3CVO 10 6 2

and GEORGE R. WESTENBERGER, 5711 Meadowbrook Drive, Harrisburg, PA 17112, individually and on behalf of a class of persons similarly situated,

JUDGE: Richard J. Leon DECK TYPE: Employment Discrimination DATE STAMP: 05/14/2003

Plaintiffs,

)

v.

)

)

JOHN E. POTTER, POSTMASTER

)

GENERAL,UNITEDSTATES

)

POSTAL SERVICE,

)

)

Defendant. )

Jury Trial Demanded

CLASS ACTION COMPLAINT Plaintiffs Bruce C. Hubbard, Judy M. Schuld, Grace J. Shirk-Emmons, Lucy I. Stieglitz and George R. Westenberger, individually and on behalf of a class of similarly situated persons, state against Defendant as follows:

I. Introduction and Overview

1.

This lawsuit results from systematic civil rights violations committed by the

United States Postal Service ("USPS") against deaf and hard-of-hearing people. USPS has

repeatedly denied its deaf and hard-of hearing employees qualified sign language interpreters-a

basic reasonable accommodation to which they are entitled under the law-and ignored their

complaints of discrimination.

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2.

Plaintiffs file this class complaint because USPS has discriminated against

hundreds, if not thousands, of deaf and hard-of-hearing employees in violation of the

Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. ("Rehabilitation Act" or "Act"). USPS has

engaged in a pattern and practice of failing to provide qualified sign language interpreters for its

deaf and hard-of-hearing employees during work meetings. The Equal Employment Opportunity

Commission ("EEOC") has repeatedly held that USPS must provide qualified interpreters for

deaf and hard-of-hearing employees as a reasonable accommodation under the Rehabilitation Act at work meetings during which safety and other important issues are discussed. 1 Despite

these clear, repeated directives from the EEOC, USPS has continued to ignore its obligations

under the Act.

3.

The anthrax outbreak, which began in October 2001 and resulted in the deaths of

two Brentwood employees and the closure of the District of Columbia Processing and

Distribution Center located at 900 Brentwood Road, Washington, D.C. 20066 ("Brentwood" or

"Brentwood facility"), has added urgency to the allegations raised herein. In light of the gravity

of this ongoing situation and an increased need for effective communication given recent

terrorist activity and an elevated state of alert (which may become further heightened due to the

conflict in Iraq and its potential aftermath), USPS's failure to provide qualified interpreters is not

only illegal, it is dangerous.

See. e.g., Reiley v. Potter, Postmaster General, 2002 WL 1305759 (E.E.O.C. June 3, 2002); Randal v. Henderson. Postmaster General, 2000 WL 157349 (E.E.O.C. Feb. 2, 2000); Ortiz v. Henderson. Postmaster General, 1998 WL 745720 (E.E.O.C. Oct. 16, 1998); Feris v. Browner. Administrator, EPA, 1996 WL 421948 (E.E.O.C. Jul. 19, 1996); Jackson v. Frank, Postmaster General, 1989 WL 1006498 (E.E.O.C. Apr. 18, 1989).
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II. .Jurisdiction and Venue

4.

This Court has jurisdiction over Plaintiffs' Rehabilitation Act claims pursuant to

28 U.S.C. § 1331, 1343(a)(3), and 1343(a)(4).

5.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(e).

III. Parties

6.

Plaintiff, Bruce C. Hubbard, is a resident of Lanham, Maryland. He has been

employed by USPS for over 30 years. For the past 15 years, until its closure due to anthrax

contamination on October 21, 2001, Mr. Hubbard worked at the Brentwood facility in

Washington, D.C. Since the closure of Brentwood, he has worked at the Suburban Processing

and Distribution Center located at 16501 Shady Grove Road, Gaithersburg, Maryland 20898-

9998 ("Gaithersburg facility"). Mr. Hubbard is deaf.

7.

Plaintiff, Judy M. Schuld, is a resident of Fairview Park, Ohio. She has been

employed by USPS for over 16 years and works at the AMC Cleveland facility located at 5801

Postal Road, Cleveland, Ohio 44181 ("Cleveland facility"). Ms. Schuld is deaf.

8.

Plaintiff, Grace J. Shirk-Emmons, is a resident of East Petersburg, Pennsylvania.

She has been employed by USPS for over 20 years and works at the Processing and Distribution

Center located at 1400 Harrisburg Pike, Lancaster, Pennsylvania ("Lancaster facility"). Ms.

Shirk is deaf.

9.

Plaintiff, Lucy I. Stieglitz, is a resident of Oklahoma City, Oklahoma. She has

been employed by USPS for over 18 years and works at the Oklahoma City Main Postal Facility

located at 320 S.W. 5th Street, Oklahoma City, Oklahoma 73125 ("Oklahoma City facility").

Ms. Stieglitz is deaf.

3

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10. Plaintiff, George R. Westenberger, is a resident of Harrisburg, Pennsylvania. He has been employed by USPS for over 28 years and works at the Keystone Station Branch of the Processing and Distribution Center located at 1425 Crooked Hill Road, Harrisburg, Pennsylvania 17107 ("Harrisburg facility"). Mr. Westenberger is deaf.
11. Defendant, United States· Postal Service, is a federal agency with an annual operating revenue of $658 billion that is responsible for the delivery of mail to almost 138 million homes, businesses, and post office boxes. USPS employs in excess of 750,000 career employees, including some 47,937 with disabilities, more than 2,400 of whom are deaf.
IV. Procedural History
12. On or about October 19, 1998, plaintiff Bruce C. Hubbard ("Hubbard"), a deaf USPS employee working at the Brentwood Facility, initiated administrative proceedings by filing a timely request for EEO counseling. Mr. Hubbard complained that, on September 5, 1998, and subsequently, USPS discriminated against him based upon his physical disability (deafness) when he was denied a sign language interpreter during work meetings. Thereafter, on January 12, 1999, Mr. Hubbard agreed to resolve his discrimination claim by participating in USPS's REDRESS Program. After a formal mediation in March and Apri11999, Mr. Hubbard and USPS entered into an agreement pursuant to which USPS agreed, inter alia, to provide contract interpreters at daily impromptu meetings. To date, USPS has made no effort to comply with this agreement.
13. On April 24, 2000, Mr. Hubbard requested a Right to File a Discrimination Complaint, which was granted. Mr. Hubbard filed a formal EEO Complaint of Discrimination in the Postal Service with the Office of EEO Compliance and Appeals, Capital Metro Operations
4

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on or about February 20, 2001, alleging that USPS failed to provide him with a sign language interpreter during work meetings.
14. On or about August 28, 2001, USPS informed Mr. Hubbard that it had completed its investigation of his formal complaint of discrimination. Mr. Hubbard then requested a hearing before an EEOC Administrative Judge. By Acknowledgment Order dated December 3, 2001, the EEOC Washington Field Office stated that it had received Mr. Hubbard's request for a hearing. Thereafter, the case proceeded in the EEOC Washington Field Office as EEOC No. 100-Al-8026X, Agency No. 1K-201-0037-99.
15. In October 2001, the seriousness of Mr. Hubbard's complaint was tragically underscored when USPS closed the Brentwood facility due to anthrax contamination that resulted in the deaths of two Brentwood employees.2 In the year following this tragedy, USPS's mail-processing methods and the health and safety of its employees came under increased scrutiny from federal, state and local government; the media; and the public.
16. On September 27, 2002, pursuant to 29 C.P.R.§ 1614.106(d) and 29 C.P.R. § 1614.204(b),3 Mr. Hubbard filed a motion with the EEOC Washington Field Office to amend his individual complaint to assert class allegations and-in conjunction with the four other Plaintiffs (Ms. Schuld, Ms. Shirk, Ms. Stieglitz and Mr. Westenberger),4 all of whom experienced the same discrimination as Mr. Hubbard-also moved for class certification. As a part of these filings, Plaintiffs filed an Amended Class Complaint. Mr. Hubbard, Ms. Schuld,

2

On October 21, 2001, USPS closed the Brentwood facility due to anthrax contamination.

It has yet to re-open. Since that time, Mr. Hubbard has worked at the Gaithersburg facility.

3

A complainant may move for class certification "at any reasonable point in the process

when it becomes apparent that there are class implications to the claim raised in an individual

complaint." 29 C.P.R.§ 1614.204(b).

4

Ms. Shirk was recently married. Her name is now Shirk-Emmons.

5

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Ms. Shirk, Ms. Stieglitz, and Mr. Westenberger were named plaintiffs in the Amended Class Complaint.
17. On October 23, 2002, Plaintiffs filed with the EEOC Washington Field Office an Amended Class Complaint (Revised) to correct a minor, non-material error in the Amended Class Complaint.
18. To date, there has been no final action taken by either USPS or the EEOC. The EEOC Administrative Judge assigned to this case has taken no action since October 23, 2002.
19. Plaintiff Bruce C. Hubbard has complied with the administrative process and has exhausted all administrative remedies.5
20. Plaintiffs are authorized to file a civil action in United States District Court. 21. This class complaint satisfies all the requirements of Rule 23 of the Federal Rules of Civil Procedure.
Class Action Allegations V. Definition of the Class
22. Plaintiffs bring this complaint on their own and on behalf of a class of persons similarly situated pursuant to the provisions of Fed. R. Civ. P. 23. The class which the Plaintiffs represent is composed of all current and future deaf and hard-of-hearing employees of the United States Postal Service who use American Sign Language ("ASL")6 as their primary means of

5

At least orie named plaintiff must exhaust his or her administrative remedies as a

condition precedent to sustaining a class action under the Rehabilitation Act. Thomas v. Reno,

943 F. Supp. 41, 43 (D.D.C. 1996) (citing Berger v. Iron Workers Reinforced Rodmen Local

201, 843 F.2d 1395 (D.C. Cir. 1988)).

6

Courts have recognized that ASL is distinct from the English language. King v. Bd. of

Educ. of Allegany Co., 999 F. Supp. 750, 755 (D. Md. 1998) ("ASL does not follow spoken

English word order, but instead has its own rules of grammar, syntax and semantics, which are

influenced by 'subtleties' such as 'arching of the eyebrows, placement of the tongue, and rate of

(continued... )

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communication and who at any time since October 19, 1998 have been denied qualified interpreters7 at work meetings. 8
VI. Systematic Discriminatory Practices Common to the Class
23. USPS has engaged, and continues to engage, in a nationwide practice of failing to
provide qualified sign language interpreters for its deaf and hard-of-hearing employees during
work meetings. With few exceptions, this systemic practice exists at USPS facilities all across
the nation. Through such practice, USPS has discriminated against its deaf and hard-of-hearing
employees based on physical handicap in violation of the Rehabilitation Act. USPS's practice
contravenes repeated EEOC decisions, one of which holds that
[t]he agency shall provide complainant and all of its hearing impaired employees who can sign, with a qualified interpreter at important work related staff meetings, training sessions, safety talks, discussions on work procedures, policies or assignments, and for every disciplinary action so that the employee can understand what is occurring at any and every crucial time in his (her) employment career, whether or not s/he asks for an interpreter. The agency is ordered to retain, at all times, the services of qualified interpreters as needed in order to fully meet this reasonable accommodation obligation. Handa! v. Henderson, Postmaster General, 2000 WL 157349, *5 (E.E.O.C. Feb. 2, 2000).9

sign production.' ... [Every] English word does not have a corresponding sign, and every sign does not have a corresponding English word."); Tugg v. Towey, 864 F. Supp. 1201, 1206 (S.D. Fla. 1994) (same).

7

"Qualified interpreter means an interpreter who is able to interpret effectively, accurately,

and impartially both receptively and expressively, using any necessary specialized vocabulary."

28 C.F.R. § 35.104.

8

October 19, 1998 is the date that Mr. Hubbard requested informal EEO counseling due to

USPS's failure to-provide interpreters at work meetings in September 1998 and subsequently,

thereby alerting USPS to the allegations raised herein.

9

See also Reiley v. Potter, Postmaster General, 2002 WL 1305759 (E.E.O.C. June 3,

2002) ("The agency will ensure that complainant is provided with a qualified sign language

interpreter when required during her employment, including at a minimum for safety talks,

discussions on work procedures, policies or assignments, and for every disciplinary action so that

the employee can understand what is occurring at any and every crucial time in the employee's

employment career.") (emphasis added); Ortiz v. Henderson, Postmaster General, 1998 WL

(continued ...)

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24. As is the case with hearing employees, in order to do their jobs safely and effectively, deaf and hard-of-hearing USPS employees must understand the important information that is provided at work meetings. Because USPS has failed to provide qualified sign language interpreters at work meetings, deaf and hard-of-hearing employees cannot understand the information that is conveyed at these meetings. This lack of information has a negative impact on their ability to do their jobs safely and effectively and has resulted in, and continues to cause, great frustration, anxiety, embarrassment and distress for hundreds, if not thousands, of deaf and hard-of-hearing employees.
25. This situation, which continues even today, was exacerbated by the anthrax crisis, during which USPS failed to provide its deaf and hard-of-hearing employees with critical information about this potentially life-threatening situation in a timely manner.
26. As noted, Plaintiffs are the following deaf USPS employees: Bruce C. Hubbard (Brentwood facility, Washington, D.C.), Judy M. Schuld (Cleveland facility, Cleveland, Ohio), Grace J. Shirk (Lancaster facility, Lancaster, Pennsylvania), Lucy I. Stieglitz (Oklahoma City facility, Oklahoma City, Oklahoma), and George R. Westenberger (Harrisburg facility, Harrisburg, Pennsylvania).
A. Bruce C. Hubbard 27. Mr. Hubbard has worked for USPS for over 30 years. For the past 15 years, until its closure on October 21, 2001, he worked at the Brentwood facility. For the past three years,
745720 (E.E.O.C. Oct. 16, 1998) (same); Feris v. Browner, Administrator. EPA, 1996 WL 421948 (E.E.O.C. Jul. 19, 1996) (same); Jackson v. Frank, Postmaster General, 1989 WL 1006498 (E.E.O.C. Apr. 18, 1989) (same); see also Haggard v. Potter. Postmaster General, 2003 WL 137899 (E.E.O.C. Jan. 7, 2003) (''The agency cannot escape its obligation to provide complainant a reasonable accommodation simply because of the difficulty of scheduling interpreter services in a timely manner.").
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Mr. Hubbard has worked as an automation mail processing clerk. He is deaf and communicates primarily by using ASL. Mr. Hubbard can read English with great difficulty, but, as with most deaf people, it is his second language. At the time of its closure on October 21, 2001, there were approximately 23 deaf employees at Brentwood.
28. At Brentwood, Mr. Hubbard's supervisor held work meetings with employees approximately once a week. The work meetings typically lasted 30 minutes and addressed safety issues, work procedures, work assignments and USPS policies. These work meetings served as a forum where employees asked questions and received immediate feedback from supervisors and co-workers. USPS required all employees, including deaf employees, to attend these work meetings. In order to do his job safely and effectively, Mr. Hubbard must understand what his supervisors and co-workers say at these meetings.
29. USPS does not provide qualified interpreters at these weekly work meetings. Without a qualified interpreter, it is virtually impossible for Mr. Hubbard to understand what is said at, or to participate in, these work meetings. Over the course of his employment, Mr. Hubbard has made numerous requests to USPS management that qualified interpreters be provided at the weekly work meetings. USPS has generally denied these requests, often without explanation.
30. At Brentwood, USPS management held special meetings every two weeks for the deaf employees, purportedly to provide the deaf employees with important information that
-
USPS had provided to its hearing employees over the previous two-week period. These special meetings were not effective in providing Mr. Hubbard with the information that he missed over the previous two-week period. First, USPS often cancelled the special meetings. Second, the supervisor in charge of the special meetings frequently failed to collect all of the important
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information that Mr. Hubbard and other deaf employees had missed over the previous two weeks. Third, the supervisor in charge of the special meetings often failed to attend the special meetings. Fourth, the special meetings were not an adequate substitute for Mr. Hubbard's ability to participate in regular work meetings in which he could ask questions and receive immediate feedback from his supervisors and co-workers from his specific work area. Fifth, the interpreter provided for the special meetings was not hired exclusively for the purpose of interpreting the special meetings and, on many occasions, left the meeting to attend to other business. Sixth, providing Mr. Hubbard and other deaf employees with important information only once every two weeks was no substitute for the reality that USPS provided the same information to hearing employees in a timely manner.
31. On October 21, 2001, USPS closed the Brentwood facility due to anthrax contamination, and two Brentwood employees died due to anthrax exposure. In the days and weeks following the closure of Brentwood, USPS held a number of meetings to provide employees with critical information about the anthrax crisis. USPS failed to provide qualified sign language interpreters at the vast majority of these important anthrax-related meetings. Mr. Hubbard attended anthrax-related meetings on October 21, 22, 23, 29 and November 20, 23, and 28; USPS provided no qualified interpreters at these meetings. Because of the lack of a qualified interpreter, Mr. Hubbard could not understand what was said at these important meetings. He repeatedly complained to his supervisors that he could not understand what was said at these meetings without the assistance of a qualified interpreter.
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32. An unqualified "signer" was present at some of these anthrax-related meetings. 10 The "signer" who was present was unable to use ASL to interpret what was said at the meetings in a way that was understandable to Mr. Hubbard or most other deaf people. In particular, the "signer" could not interpret the technical and specialized medical terminology used by personnel at these meetings to explain the threat posed by anthrax.
33. In order to do his job safely and effectively, Mr. Hubbard must understand the important information that USPS provides at work meetings. Because USPS has failed to provide qualified sign language interpreters at work meetings, despite Mr. Hubbard's repeated requests, he cannot understand the important health, safety, and job information that is provided at these meetings. This lack of information has had a negative impact on Mr. Hubbard's ability to do his job safely and effectively and has resulted in, and continues to cause, great anxiety, frustration, embarrassment and distress.
34. This situation, which is ongoing, was exacerbated by th~ anthrax crisis, during which USPS failed to provide Mr. Hubbard and other deaf employees with critical information about this potentially life-threatening situation in a timely manner.
35. USPS's failure to provide qualified sign language interpreters at work meetings has been a problem ever since Mr. Hubbard began working for USPS over 29 years ago and remains a problem to this day.
10 Interpreting is not the same as "signing." The ability to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone "signing" and conve• their signed communication into spoken words. The interpreter must be able to interpret both receptively and expressively. See 28 C.P.R.§ 35.104.
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B. Judy M. Schuld 36. Judy M. Schuld has been employed by USPS for over 16 years. She works as a mail processing clerk at the AMC Cleveland facility located at 5801 Postal Road, Cleveland, Ohio 44181 ("Cleveland facility"). Ms. Schuld is deaf and communicates primarily by using ASL. She can read English with difficulty, but, as is the case with most deaf people, it is her second language. There are approximately seven deaf or hard-of-hearing people employed at the Cleveland facility. 37. At the Cleveland facility, there are typically daily work meetings that provide employees with timely information about important events affecting their working conditions, including workplace safety, performance, training, discipline and productivity. In addition, employees receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain guidance from their supervisors regarding issues that affect their particular work area. The work meetings typically last between 30 and 40 minutes. In order for Ms. Schuld to do her job safely and effectively, she must understand what her supervisor and coworkers say at these work meetings. 38. USPS does not provide qualified sign language interpreters at these work meetings. Without a qualified interpreter, it is virtually impossible for Ms. Schuld to understand what is said at, or to participate in, these work meetings. Ms. Schuld has frequently requested that qualified sign language interpreters be provided at these work meetings without success. When Ms. Schuld asks her supervisors what questions were asked at a work meeting, they typically brush her off. 39. On one occasion, Ms. Schuld injured her Achilles tendon because she was pulling a mail cart. At a previous work meeting, USPS had instructed hearing employees to push mail
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carts in order to avoid injury. Because USPS failed to provide a qualified interpreter at the work meeting, Ms. Schuld did not receive this important safety information.
40. USPS holds periodic meetings for deaf employees, purportedly to provide deaf employees with the information that hearing employees have received over the previous month. However, the information provided at these special meetings is inadequate, outdated, and no substitute for contemporaneous participation in work meetings with the supervisors and coworkers from Ms. Schuld's specific work area.
41. Since October 2001, USPS has faced anthrax contamination in a number of its facilities. In late fall of 2001, USPS held a meeting at the Cleveland facility at which USPS management met with all the employees for a safety talk concerning anthrax and other bioterrorism issues. USPS provided no sign language interpreters at this important meeting. Prior to this meeting, Ms. Schuld had noticed that her hearing co-workers had begun to take special precautions when handling mail-for example, wearing gloves. When Ms. Schuld asked her supervisor what prompted these precautionary measures, he told her that it was because of anthrax and that he would bring Ms. Schuld a pair of gloves. Ms. Schuld did not know what anthrax was at that time. Unlike the hearing employees, it was not until a few hours after the anthrax meeting that USPS provided gloves to the deaf and hard-of-hearing employees.
42. In December 2001, a white substance believed to be anthrax was found at a downtown Cleveland USPS facility. Although USPS made Ms. Schuld's hearing colleagues aware of this incident, USPS did not provide similar information to deaf and hard-of-hearing employees.
43. Due to its failure to provide qualified sign language interpreters at work meetings, USPS did not provide Ms. Schuld and other deaf employees at the Cleveland facility with
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adequate information about anthrax and other bio-terrorism issues. For several months, Ms. Schuld did not understand the seriousness and scope of the anthrax crisis.
44. In order to do her job safely and effectively, Ms. Schuld must understand the information that USPS provides at work meetings. Because USPS has failed to provide qualified sign language interpreters at work meetings, despite Ms. Schuld's repeated requests, Ms. Schuld cannot understand the important health, safety, and job important information that USPS conveys at these meetings. This lack of information has had a negative impact on Ms. Schuld's ability to do her job safely and effectively and has resulted in, and continues to cause, frustration, anxiety, embarrassment and distress.
45. This ongoing situation was exacerbated by the anthrax crisis during which USPS failed to provide Ms. Schuld and other deaf employees with critical information about this potentially life-threatening situation in a timely manner.
46. USPS's failure to provide qualified sign language interpreters at work_meetings is a continuing problem for Ms. Schuld.
C. Grace J. Shirk- Emmons 47. Grace J. Shirk-Emmons has been employed by USPS for over 20 years. She works as a floor clerk at the Processing and Distribution Center located at 1400 Harrisburg Pike, Lancaster, Pennsylvania ("Lancaster facility"). Mrs. Shirk-Emmons is deaf and communicates primarily by using ASL. She can read English, but, as with most other deaf people, it is her second language. There are approximately 14 deaf or hard-of-hearing people employed at the Lancaster facility. 48. At the Lancaster facility, there are some daily as well as weekly work meetings at which supervisors and employees discuss important work-related issues such as safety, work
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procedures, changes in work assignments and policies, disciplinary rules, and training opportunities among other topics. The work meetings typically last between 10 and 20 minutes, though they can sometimes continue up to one hour in duration. These work meetings provide employees with timely information about important events that affect their working conditions. Employees also receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain timely guidance from supervisors regarding specific issues in their work area. In order to do her job safely and effectively, Mrs. Shirk-Emmons must understand what her supervisors and co-workers say at these meetings.
49. USPS does not provide qualified interpreters at these work meetings. Without a qualified interpreter, it is virtually impossible for Mrs. Shirk-Emmons to understand what is said · at, or to participate in, these work meetings. Mrs. Shirk-Emmons has requested that qualified interpreters be provided at work meetings, but her requests have been denied.
50. At the Lancaster facility, USPS holds special meetings every two weeks for deaf employees, ostensibly to provide the deaf employees with important information that the hearing employees receive at regular work meetings. These special meetings are not effective in providing Mrs. Shirk-Emmons with the important information that she missed over the previous two-week period. Supervisors from various work areas conduct the special meetings on a rotating basis. The supervisors who conduct the special meetings typically do not have information regarding the specific area in which Mrs. Shirk-Emmons works. The supervisors tend to focus on their own specific work area and the information that is pertinent to that area. Consequently, the special meeting does not provide Mrs. Shirk-Emmons with the same information that is provided to her hearing co-workers.
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51. Mrs. Shirk-Emmons' supervisors sometimes assert that she can obtain the same information as her hearing co-workers by reading summaries of the work meetings or papers explaining policies and procedures. Mrs. Shirk-Emmons communicates in ASL, and while she can read English, it is her second language. Thus, it is very difficult for Mrs. Shirk-Emmons to understand a written summary of information provided at a work meeting. Only a qualified sign language interpreter can ensure that Mrs. Shirk-Emmons and other deaf employees fully understand the important information that USPS provides at work meetings.
52. Since October 2001, USPS has faced anthrax contamination in a number of its facilities. In the days and weeks following the closure of the Brentwood facility due to anthrax contamination, the Lancaster facility held a number of meetings to provide employees with critical information about the anthrax crisis. USPS failed to provide qualified sign language interpreters at the vast majority of these anthrax-related meetings. Due to the lack of a qualified interpreter, Mrs. Shirk-Emmons could not understand what was said at these important meetings.
53. In order to do her job safely and effectively, Mrs. Shirk-Emmons must understand the important information provided at work meetings. Because USPS has failed to provide qualified sign language interpreters at work meetings, despite Mrs. Shirk-Emmons' repeated requests, Mrs. Shirk-Emmons cannot understand the important health, safety, and job information that USPS provides at these meetings. This lack of information has had a negative impact on Mrs. Shirk-Emmons' ability to do her job safely and effectively and has resulted in,
~
and continues to cause, great anxiety, frustration, embarrassment and distress. 54. This situation, which is ongoing, was exacerbated by the anthrax crisis, during
which USPS failed to provide Mrs. Shirk-Emmons and other deaf employees with critical information about this potentially life-threatening situation in a timely manner.
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55. USPS's failure to provide qualified sign language interpreters at work meetings is a continuing problem for Mrs. Shirk-Emmons.
D. Lucy I. Stieglitz 56. Lucy I. Stieglitz has worked for USPS for over 18 years. She works as a mail processing clerk at the Oklahoma City Main Postal Facility located at 320 S.W. 5th Street, Oklahoma City, Oklahoma 73125 ("Oklahoma City facility"). Ms. Stieglitz is deaf and communicates primarily by using ASL. She can read English with great difficulty, since, as with most deaf people, it is her second language. There are approximately six deaf and hard-ofhearing people employed at the Oklahoma City facility. 57. At the Oklahoma City facility, there are typically weekly work meetings that provide employees with timely information about important events affecting their working conditions, such as workplace safety, performance, discipline, training, and productivity issues. In addition, employees receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain timely guidance from their supervisors regarding issues that affect their particular work area. The work meetings typically last for one hour. In order to do her job safely and effectively, Ms. Stieglitz must understand what her supervisors and coworkers say at these meetings. 58. USPS does not provide qualified sign language interpreters at these work meetings. The practice among Ms. Stieglitz's supervisors is to use USPS employees who have some ability to siirt. These employees are not qualified interpreters. 11 Without a qualified sign

11

Supra notes 6-7 and 9-10.

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language interpreter, it is virtually impossible for Ms. Stieglitz to understand what is said at, or to participate in, these work meetings.
59. Ms. Stieglitz worked in the Automation group for approximately one year, until February 2002. Her supervisor would call work meetings every week, but would not announce them to Ms. Stieglitz. Often, Ms. Stieglitz was left alone at her work station while her hearing co-workers were at a work meeting. When Ms. Stieglitz was aware of a work meeting, she would attend, but do little more than sit and stare at the ceiling since she could not understand what was said because of the lack of a qualified sign language interpreter. Ms. Stieglitz repeatedly requested that qualified sign language interpreters be provided at work meetings, but USPS repeatedly denied her requests.
60. At the close of each work meeting, USPS expected Ms. Stieglitz to sign a form attesting that she had attended the meeting and understood the contents of what was discussed. Ms. Stieglitz regularly refused to sign this form.
61. In February of 2002, Ms. Stieglitz moved from the Automation group to a flat sorter position, where she worked for approximately one to two months. During her time in that job, Ms. Stieglitz attended weekly work meetings at which an unqualified "signer" was present. 12
62. At present, Ms. Stieglitz works as a mail processing clerk handling priority mail. USPS provides neither a qualified interpreter nor even an unqualified "signer" at the work meetings. After each hour-long work meeting, Ms. Stieglitz's supervisor provides her with a two- or three-line written summary. Clearly, this alleged summary does not provide Ms. Stieglitz with information that is comparable to what USPS provided to her hearing co-workers

12

Supra notes 6-7 and 9-10.

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during the hour-long work meeting. Nor does the two- to three-line summary allow Stieglitz to understand the questions asked by her co-workers and the answers provided by her supervisors.
63. At the Oklahoma City facility, USPS conducts occasional meetings for deaf employees only, purportedly to provide deaf employees with the important information that hearing employees have already received at the regular work meetings over the last month. However, the information that USPS provides at these special meetings is inadequate and out-ofdate. Moreover, such special meetings simply heighten the isolation and segregation of deaf employees from their hearing colleagues.
64. Since October 2001, USPS has faced anthrax contamination in a number of its facilities. In late fall of 2001, USPS organized a mandatory meeting at the Oklahoma City facility at which a physician from the Centers for Disease Control met with all employees for a safety talk concerning anthrax and other bio-terrorism issues. USPS did not provide sign language interpreters at this important meeting. Although USPS convened several meetings for hearing employees to discuss the anthrax crisis, USPS invited Ms. Stieglitz and the other deaf employees to attend only one such meeting. Even at that meeting, USPS failed to provide a qualified sign language interpreter and, instead, provided only an unqualified "signer."
65. In order to do her job safely and effectively, Ms. Stieglitz must understand the important information that USPS provides at work meetings. Because USPS has failed to provide qualified sign language interpreters at work meetings, despite Ms. Stieglitz's repeated requests, Ms. Stieglitz cannot understand the important health, safety, and job information that USPS provides at these meetings. This lack of information has had a negative impact on Ms. Stieglitz's ability to do her job safely and effectively and has resulted in, and continues to cause, great frustration, anxiety, embarrassment and distress.
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66. This situation, which still continues even today, was exacerbated by the anthrax crisis, during which USPS failed to provide Ms. Stieglitz and other deaf employees with critical infonnation about this potentially life-threatening situation in a timely manner.
67. USPS's failure to provide qualified sign language interpreters at work meetings is a continuing problem for Ms. Stieglitz. ·
E. George R. Westenberger 68. George R. Westenberger has worked for USPS for over 28 years. He works as a clerk at the Keystone Station Branch of the Processing and Distribution Center located at 1425 Crooked Hill Road, Harrisburg, Pennsylvania 17107 ("Harrisburg facility"). Mr. Westenberger is deaf and communicates primarily by using ASL. He can read English with great difficulty since it is his second language. There are approximately 15 deaf people employed at the Harrisburg facility. 69. At the Harrisburg facility, there are weekly work meetings at which employees discuss and learn about important work-related issues such as safety, procedures, changes in work assignments and policies, disciplinary rules, and training opportunities, among other topics. The work meetings typically last between 20 and 30 minutes. USPS has also sent Mr. Westenberger to day-long training seminars at which he could not understand anything because USPS did not provide a qualified interpreter. The weekly work meetings provide employees with timely infonnation about important events that affect their working conditions. In addition, employees receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain timely guidance from supervisors regarding issues specific to their work area. In order to do his job safely and effectively, Mr. Westenberger must understand what his supervisors and other co-workers say at these meetings.
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Case 1:03-cv-01062-RJL-JMF Document 1 Filed 05/14/03 Page 21 of 28
70. USPS does not provide qualified interpreters at these work meetings. Without a qualified interpreter, it is virtually impossible for Mr. Westenberger to understand what is said at, or to participate in, these work meetings. Mr. Westenberger has asked for qualified sign language interpreters to be provided at work meetings, but USPS has denied his requests.
71. USPS sometimes provides Mr. Westenberger and other deaf and hard-of-hearing employees with a written summary of the information that was discussed at a work meeting. However, Mr. Westenberger can only read English with great difficulty. Only a qualified sign language interpreter can ensure that Mr. Westenberger and other deaf employees fully understand the important information that USPS provides at work meetings.
72. Since September 11, 2001, USPS has held monthly deaf-orily staff meetings at the· Harrisburg facility. These meetings, however, are not effective in providing Mr. Westenberger with the information that he misses during the weekly work meetings at which USPS provides no qualified interpreters. The supervisors who run the deaf-only meetings do not have information that is specific to Mr. Westenberger's work area. Instead, the supervisors focus on their own work area or provide only very basic and general information. These meetings are no substitute for contemporaneous participation in work meetings with the supervisors and co-workers from Mr. Westenberger's specific work area.
73. Since October 2001, USPS has faced anthrax contamination in a number of its facilities. At the Harrisburg facility, USPS management conducted numerous meetings regarding the dangers of anthrax and the precautions that should be taken. USPS failed to provide qualified sign language interpreters at all of these anthrax-related work meetings. Mr. Westenberger asked that interpreters be provided, but USPS denied his requests.
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74. USPS has not effectively communicated with Mr. Westenberger regarding anthrax issues.
75. Mr. Westenberger has never received any information concerning medications that he should take if he is exposed to anthrax. He has seen posted and distributed what appears to be very complex medical information about the physical effects of anthrax and the medicine Ciprofloxacin, but he cannot understand the information.
76. In order to do his job safely and effectively, Mr. Westenberger must understand the important information that USPS provides at work meetings. Because USPS has failed to provide qualified sign language interpreters at work meetings, despite Mr. Westenberger's repeated requests, Mr. Westenberger cannot understand the important health, safety, and job information that USPS provides at work meetings. This lack of information has had a negative
impact on Mr. Westenberger's ability to do his job safely and effectively and has resulted in, and
continues to cause, great frustration, anxiety, embarrassment, and distress. 77. This ongoing situation was exacerbated by the anthrax crisis, during which USPS
failed to provide Mr. Westenberger and other deaf employees with critical information about this
potentially life-threatening situation in a timely manner. 78. USPS's failure to provide qualified sign language interpreters at work meetings is
a continuing problem for Mr. Westenberger. VII. Class Treatment
79. A class action is superior to other available methods for the fair and efficient resolution of this controversy. Requiring class members to pursue their claims individually would entail a host of actions, with duplication of costs, attorneys' fees, and resources. Moreover, as noted, the EEOC has issued numerous decisions that require USPS facilities to
22

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provide qualified sign language interpreters at work meetings as required by the Rehabilitation Act. Despite these decisions aimed at individual facilities, USPS has failed to change its widespread practice of not providing its deaf and hard-of-hearing employees with qualified sign language interpreters at work meetings. This intransigence on the part of the USPS can best be addressed by means of a class action.
80. The proposed class satisfies all the requirements of numerosity, commonality, typicality, and adequacy of representation.
A. Numerosity 81. The proposed class is so numerous and geographically dispersed that the pursuit of individual actions by each class member is impracticable. According to USPS documents, as of September 8, 2000, USPS had more than 2,400 deaf employees. The class consists of at least hundreds, if not thousands, of deaf and hard-of-hearing USPS employees from across the country who have been denied qualified sign language interpreters during work meetings. Joinder of all class members is impracticable. 82. In the months following the anthrax outbreak in October and November 2001, USPS's safety policies and work procedures became the focus of increased governmental and media scrutiny. During this period, it became evident that the precise issues that formed the basis of Mr. Hubbard's February 20, 2001 complaint against USPS (i.e., failure to provide qualified interpreters at work meetings) were not unique to Brentwood, but were being experienced by deaf and hard-of-hearing USPS employees at USPS facilities around the nation. As demonstrated by the named Plaintiffs, USPS's discrimination against its deaf and hard-ofhearing employees through its failure to provide qualified sign language interpreters at work meetings is occurring at USPS facilities in Washington, D.C; Cleveland, Ohio; Lancaster,
23

Case 1:03-cv-01062-RJL-JMF Document 1 Filed 05/14/03 Page 24 of 28
Pennsylvania; Oklahoma City, Oklahoma; and Harrisburg, Pennsylvania. The named Plaintiffs, however, represent only a small sample of the employees faced with USPS's failure to provide effective interpreting services.
B. Commonality 83. There are questions of law and fact common to the class that predominate over individual questions, including, but not limited to whether USPS discriminates against its deaf and hard-of-hearing employees in violation of the Rehabilitation Act by engaging in a nationwide practice of failing to provide qualified sign language interpreters for these employees during work meetings. Work floor or similar work-related meetings occur at USPS facilities throughout the nation and USPS's failure to provide qualified interpreters at these meetings affects deaf and hard-of-hearing employees across the nation. Special deaf-only meetings offered by a minority of facilities provide incomplete information to deaf employees and are but one example of USPS's continuing failure to provide deaf employees with the reasonable accommodation to which they are entitled. Plaintiffs challenge USPS practices and systemic failures that discriminate against the class as a whole.
C. Typicality 84. The claims of the Plaintiffs are typical of the claims of the class. The issues of fact involved are common to the class as a whole (namely the failure to provide qualified interpreters at work meetings), and tum on questions of law that are applicable in the same manner to each member of the class. There is nothing about the nature of Plaintiffs' claims, nor the circumstances surrounding them, that suggests they are atypical of those of the class; rather, deaf and hard-of-hearing USPS employees across the nation share the very complaints made by Plaintiffs. Like the putative class members, Plaintiffs use ASL as a primary means of
24

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communication and have all been subject to the same challenged practices that are applied to the class as a whole.
D. Adequacy of Representation 85. Plaintiffs and their legal representatives will fairly and adequately protect the interests of the class. Plaintiffs' interests are not antagonistic to, but rather in unison with, the interests of the other class members; there is no evidence of any conflicts of interest between Plaintiffs and any members of the proposed class. 86. Class counsel have extensive experience in litigating class actions and are fully qualified to pursue the claims of the class in this case. Specifically, Covington & Burling ("Covington") is a leading international law firm with over 500 lawyers practicing in Washington, D.C., New York, San Francisco, London, and Brussels, with expertise in all types of complex litigation and alternative dispute resolution proceedings. The lead attorney on this case, Covington partner Thomas S. Williamson, Jr., a former Solicitor of Labor for the United States Department of Labor, has broad experience in employment law matters and has previously handled complex class action litigations. During the past four years ending on September 30, 2002, he served as Chair of the Chevron Texaco Task Force on Equality and Fairness, an independent group of special masters established by Judge Charles L. Brieant of the Southern District of New York to oversee implementation of the settlement of a major class action racediscrimination case. 87. The Washington Lawyers' Committee for Civil Rights and Urban Affairs ("Lawyers' Committee") is a public interest organization that, for over thirty years, has represented individuals and groups denied equal employment opportunities. The Lawyers' Committee has handled over 5,000 civil rights cases and has been counsel to classes of plaintiffs
25

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in dozens of class actions that proceeded administratively and/or judicially, many of which were against federal agencies. Elaine Gardner is the Director of the Lawyers' Committee's Disability Rights Project and has 25 years of experience litigating civil rights cases for deaf individuals. Susan Huhta is the Director of the Lawyers' Committee's Equal Employment Opportunity Project and has experience in litigating major class action lawsuits involving employment discrimination.
88. James E. McCollum, Jr., & Associates, P.C. ("the McCollum firm") is a law firm located in College Park, Maryland with an active employment law practice. The McCollum firm has particular experience and expertise in litigating cases to ensure the civil rights of deaf and hard-of-hearing people.
89. Class counsel, described above, are working in consultation with the National Association of the Deaf Law Center ("NAD Law Center"). The NAD Law Center has safeguarded the rights of deaf and hard-of-hearing people since 1976. The NAD Law Center has significant experience bringing cases in federal courts and before administrative bodies in order to protect the civil rights of all deaf and hard-of-hearing Americans.
90. USPS has acted, and continues to act, in a manner generally applicable to the class as a whole, thereby making final injunctive relief appropriate to the class. VIII. Cause of Action • Violation of the Rehabilitation Act of 1973, 29 U.S.C. §791 et seq
91. Plaintiffs reallege and incorporate by reference each and every allegation set forth above.
92. USPS has repeatedly and unjustifiably denied Plaintiffs the benefits of qualified sign language interpreters at critical work-related meetings, a reasonable accommodation to which they are entitled under the Rehabilitation Act.
26

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93. In doing so, USPS has discriminated against its deaf and hard-of-hearing employees by denying them important work-related information that it provides to its hearing employees.
94. USPS's refusal to provide qualified interpreters has injured all class plaintiffs, causing them to suffer frustration, anxiety, embarrassment, and distress. These injuries take on a heightened importance in light of this country's elevated state of terrorist alert, current military activities in Iraq and Afghanistan, and renewed efforts to address anthrax and other bioterrorism issues that have recently and disproportionately affected USPS employees across the country.
95. The Rehabilitation Act provides redress for Plaintiffs' injuries.
IX. Prayer for Relief
96. WHEREFORE, Plaintiffs, on behalf of the class, pray that the Court enter judgment against Defendants as follows:
(i) Certify this action as a class action, certify Plaintiffs as class representatives, and designate their counsel as class counsel;
(ii) Declare that USPS's practice of failing to provide qualified interpreters for its deaf and hard-of-hearing employees during work meetings is a violation of the Rehabilitation Act;
(iii) Enjoin USPS nationwide from continuing to engage in discriminatory practices against its deaf and hard-of-hearing employees by failing to provide qualified sign language interpreters at work meetings in violation of the Rehabilitation Act;
(iv) Retain jurisdiction over USPS until such time as the Court is satisfied the unlawful policies, practices, acts and omissions complained of herein no longer exist and will not recur; and
27

Case 1:03-cv-01062-RJL-JMF Document 1 Filed 05/14/03 Page 28 of 28

(v) Grant Plaintiffs' reasonable attorneys' fees, costs, and litigation expenses, and such other relief as may be just and equitable. X. .Jury Demand
Plaintiffs demand trial by jury on all issues so triable. Respectfully submitted,

May 14,2003

Thomas S. illiamson, Jr. #217729 Christopher M. Denig #457187 Shaun M. Palmer #478320 Shamoil T. Shipchandler #478389 Covington & Burling 1201 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 662-6000
Elaine Gardner #271262 Susan E. Huhta #14547 Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 (202) 319-1000
James E. McCollum, Jr. #398117 Carla M. Mathers #445064 James E. McCollum, Jr. & Associates, P.C. P.O. Box 1717 Suite 117 College Park, MD 20741 (30 1) 864-6070
Attorneys for Plaintiffs Bruce C. Hubbard, Judy M. Schuld, Grace J. Shirk-Emmons, Lucy I. Stieglitz, and George R. Westenberger

28

 
 Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

~J!t LED

BRUCE C. HUBBARII, et al.,

)

)

Plaintiffs,

)

M.AY ,2 6'2004
lf,NCYIMYER Wl-I!TTINGTON.. CLEillt U.S. DISTRICT COURT

)

v.

)

Civ. No. 03-1062 (RJL)

)

JOHN E. POTTER, POSTMASTER,

)

GENERAL, UNITED :STATES POSTAL

)

SERVICE,

)

Defendant.

)

~
MEMORANDUM OPINION AND ORDER (11ay~,2004) [#10, 18,20]

Before the Comi are the defendant's Motion to Strike or Dismiss Class Action Allegations ofthe Complaint, and the parties' opposing motions regarding the response to and scope of class-related discovery. The defendant, John E. Potter, Postmaster General of the United States Postal Service ("USPS"), moves for dismissal of the plaintiffs' class claims under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq., on the grounds that they do not meet the commonality, typicality, or adequacy of representation requirements of the Fed. R. Civ. P. 23(a). USPS further argues that the plaintiffs' claims are time-barred and also fail for lack of proper venue. For the following reasons, the Court GRANTS the defendant's motion to strike the class allegations ofthe Complaint without prejudice. In addition, the Court GRANTS, in part, the plaintiffs' 11otion to Compel, and DENIES the defendant's 11otion for Protective Order.

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 2 of 12
Factual Background On May 14, 2003, the five plaintiffs in this case, Bruce C. Hubbard, Judy M. Schuld, Grace J. Shirk-Emmons, Lucy I. Stieglitz, and George R. Westenberger ("named plaintiffs") filed a class action complaint, alleging systematic civil rights violations committed by the United States Postal Service ("USPS") against deaf and hard-of-hearing people under the Rehalbilitation Act, as amended, 29 U.S.C. § 791, et seq. More specifically, the named plaintiffs, deaf individuals who have been employed at various USPS facilities around the country for sixteen or more years, allege that USPS has repeatedly refused to provide each of them with a certain type of"qualified sign language interpreter" (i.e., Anie1ican Sign Language ("ASL") qualified interpreters)/ which they claim is a basic reasonable accommodation to which they, and other similarly situated deaf and hard-of-hearing employees, are entitled to as a matter oflaw. The named plaintiffs bring their complaint on their own and on behalf of a class of persons composed of all current and future deaf and hard-of-hearing employees of USPS
1 Although their pleadings repeatedly use the general term "qualified sign language interpreter" and do not specifically linrit their definition to qualified ASL interpreters, implicit in the plaintiffs' claims is that a "qualified sign language interpreter" is a qualified ASL interpreter, as opposed to an interpreter qualified in another sign language. Compl. , 22. Accordingly, in applying the plaintiffs' term the Court will construe it to mean "qualified ASL interpreters." Plaintiffs also appear to draw a distinction between "qualified interpreters" and "unqualified" ASL signers, but do not clearly specify the basis for that distinction. See, e.g., Compl. , 32 n.lO.
2

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 3 of 12
who use ASL as their primary means of communication 2 and who, at any time since October 19, 1998,3 have been denied qualifiedASL interpreters at work meetings. Compl. 'If 22. Each named plaintiff has alleged that because USPS did not provide qualified interpreters at work meetings, he or she was unable to understand information given by supervisors or co-workers. The named plaintiffs assert that in order to do their job "safely and effectively," they need to understand what their supervisors and coworkers say at these meetings. Compl. 'lf'lf 28, 37, 48, 57, 69. Allegations specific to plaintiffs Hubbard, Schuld, and Stieglitz are illustrative.
Plaintiff Hubbard, who is employed as an automation mail processing clerk at the Brentwood facility in Washington, D.C., alleges that it was impossible for him to understand information at weekly work meetings addressing safety issues, work procedures, work assignments, and USPS policies. Compl. 'If 28. "Special meetings" every two weeks for deaf employees were either ineffective in providing him with the information he missed at work meetings or were cancelled. Compl.'lf 30. Moreover, in
2 The pleadings do not indicate what percentage of the deaf or hard-of-hearing employees at USPS uses ASL as their primary means of communication, or even what percentage of the deaf or hard-of-hearing population in the United States relies on ASL as their primary means of communication.
3 October 19, 1998 is the date that plaintiff Hubbard requested informal EEO counseling due to USPS's failure to provide ASL .illterpreters at work meetings in September 1998. Compl., 1:2. Plaintiff Hubbard filed a formal EEO Complaint on February 20, 2001, and on September 27, 2002, he moved to amend his complaint to assert class allegations in conjunction with the fom other named plaintiffs in this case. ld. at,, 13, 16. According to the plaintiffs, there has been no fmal action in this matter. Compl. , 18.
3

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October 2001, the Brentwood facility closed due to anthrax contamination and plaintiff Hubbard alleges that because of the lack of a qualified interpreter, he could not understand what was said at important anthrax-related meetings. Compl. "1!32. Although an unqualified "signer" was present at some of these meetings, the signer could not interpret the technical ;md medical terminology used by personnel at these meetings to explain the threat of anthrax. Id.
Plaintiff Schuld, employed as a mail processing clerk at a facility in Cleveland, Ohio, claims that she dlid not receive "important safety information" on several occasions, including during the October 2001 anthrax contamination of some USPS facilities and one instance in which she injured her Achilles tendon while pulling a mail cart, after having missed a meeting instructing employees to push mail carts to avoid injury. Compl.
"II "1!39, 41. Plaintiff Stieglitz, employed as a mail processing clerk in a facility in
Oklahoma City, Oklahoma, alleges that her supervisors use other USPS employees who have an ability to sign during meetings. Compl. "1!58. However, she claims that because these signers are not qualified interpreters, it is virtually impossible for her to understand what is said, or to participate in these work meetings. Although her supervisor provides her with a two to three-line written summary of work meetings, plaintiff Stieglitz alleges that these summaries do not provide her with information comparable to what is provided to her hearing co-workers. Compl. "1!62.
Plaintiffs Shirk-Emmons and Westenberger, who work at USPS facilities in
4

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 5 of 12
Lancaster, Pennsylvania and Harrisburg, Pennsylvania, respectively, also allege that they are unable to obtain important information at work meetings because of the lack of qualified interpreters. All five named plaintiffs allege that they were unable to understand information given at meetings regarding the anthrax contamination of certain USPS facilities since October 2001.
With regard to the putative class, the named plaintiffs claim that common questions oflaw and fact predominate over individual questions, including the issue of whether USPS discriminates against its deaf or hard-of-hearing employees by engaging in a "nationwide practice of failing to provide qualified sign language interpreters" during work meetings, Compl. ~ 83, thereby denying them important work-related information and causing them to suffer frustration, anxiety, embarrassment, and distress. Compl. ~~ 93-94. The named plaintiffs allege that work floor or similar work-related meetings occur at USPS facilities throughout the nation and USPS's failure to provide qualified interpreters at these meetings affects deaf and hard-of-hearing employees across the nation. Compl. ~ 83.
USPS moves to strike or dismiss the plaintiffs' class claims under Fed. R. Civ. P. 12(b)(l) and (6) on the grourtds that the plaintiffs have failed to show that there is a single aspect or feature of the claims that would be common to all class members, and thus the commonality requirement of Rule 23(a) cannot be met. In addition, USPS asserts that the adequacy of representation requirement of Rule 23(a) has not been met because there is a
5

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 6 of 12
likelihood that if it were to prevail, not every member of the putative class would be bound by the judgment. Finally, USPS asserts that the plaintiffs' class claims are timebarred and that they fail for lack of proper venue. The present motion comes to the Court prior to the commencement of discovery and the filing of the plaintiffs' motion for class certification.
For the following reasons, the Court finds that the plaintiffs have failed to allege a set of facts under which the commonality and typicality requirements of Rule 23(a) could be satisfied. The class claims in the Complaint are thus dismissed without prejudice, and this action will proceed on the claims of the five individual plaintiffs.4
Discussion In evaluating a motion to dismiss or strike class allegations prior to discovery, the Court must apply the standard of review set forth in Fed. R. Civ. P. 12(b)(6). See Quarles v. General Investment & Development Co., 260 F.Supp.2d 1, 4-5 (D.D.C. 2003); 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1759 (2d ed. 1986). It will only dismiss claims pursuant to Fed. R. Civ. P. 12(b)(6) if"it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, even if the Court accepts as true all of the factual allegations set forth in 4 Given this basis for dismissal, tbe Court need not engage in further analysis of USPS's alternative arguments in support of dismissal.
6

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the complaint, Doe v. United States Dept. ofJustice, 753 F.2d 1092, 1102 (D.C. Cir. 1985), and construes the complaint liberally in favor of the plaintiff, Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979), it "need not accept inferences drawn by [the] plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal, 16 F.3d at 1276.
Fed. R. Civ. P. 23(a) sets forth the prerequisites for the filing of a class action. The prerequisites are that the class: (1) is so numerous "that joinder of all members is impracticable"; (2) has common issues oflaw or fact; (3) that the claims of the class representatives "are typical of the claims...of the class"; and (4) that the interests of the class will be "fairly and adequately protect[ed]" by the representative parties. Fed. R. Civ. P. 23(a); see also Quarles, 260 F.Supp.2d at 5; Mayfield v. Meese, 1987 WL 10494, *1 (D.D.C., April24, 1987). These prerequisites must be alleged in the plaintiffs complaint at the time of filing and must be established prior to the certification of a class. LCvR 23.1(a)(2). Although the Court does not possess "any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action...it is evident that some inspection of the circumstances of the case is essential to determine whether the prerequisites of Rule 23 have been met." Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987); see also Fed. R. Civ. P. 23(c)(1) (detertnination of whether a class action can be maintained shall be made "at an early practicable time...").
7

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The commonality and typicality requirements ofRule 23(a) overlap because both "serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." General Telephone Co. ofthe Southwest v. Falcon, 457 U.S.147, 157 n.13 (1982) ("Falcon"). Indeed, the ultimate inquiry is whether the plaintiffs ean allege or identify a common injury. Hartman v. Duffey, 19 F.3d 1459, 1474 (D.C. Cir. 1994). The mere existence offactual dissimilarities will not preclude findings of commonality and typicality, so long as "a single aspect or feature of the claim is common to all proposed class members," and the representatives ofthe class suffered a similar injmy from the same course of conduct as the injmy alleged for the entire class. Bynum v. District ofColumbia, 217 F.R.D. 43, 46-47 (D.D.C. 2003).
The plaintiffs argue that their complaint clears the low hurdle of notice pleading because they have alleged that USPS failed to comply with its own policy regarding its obligation to provide qualified sign language interpreters. Pl. Supp. Mem. 2-3. However, assuming arguendo that USPS did have a nationwide policy regarding the provision of qualified interpreters, as the Court must, the plaintiffs still need to allege a common injmy that would justify litigating the claims of putative class members, who comprise a subset of the current and future deaf and hard-of-hearing employees of the USPS (i.e., those dependent on qualified ASL interpreters). The Court finds that the plaintiffs have not
8

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 9 of 12
alleged a set of facts that could satisfY the Rule 23(a) requirements of commonality and typicality and would put USPS on notice of the claims of the putative class.
With regard to the plaintiffs' claim for failure to accommodate a disability under the Rehabilitation Act, 29 U.S.C. § 791, the D.C. Circuit has held that although "'[t]he government is not obligated under the statute to provide the plaintiff with every accommodation he may request,' the government must, at a minimum, provide 'reasonable accommodation as is necessary to enable him to perform his essential functions."' Carter v. Bennett, 840 F.2d 63, 67 (D.C. Cir. 1988). Because of the myriad ofpotential factual distinctions between individual plaintiffs with regard to their disability and what would reasonably accommodate such a disability, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198-99 (2002), there must be a unifYing factor common to the named and putative class members that would prevent this action from disintegrating into hundreds, if not thousands, of individualized suits litigating the issue ofwhether a qualified ASL interpreter, as opposed to other signers or other possible accommodations, is necessary for the putative class members to engage in the essential functions of their jobs. This is especially crucial where the putative class could potentially include deaf or hard-of-hearing employees performing a wide variety of :functions within USPS, who have already been provided with varying levels of accommodation. Cf Falcon, 457 U.S. at 158-59. Indeed, the allegations of the five named plaintiffs, some of whom hold different positions at the USPS and who appear to have been provided with different
9

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 10 of 12
means of accommodation up to this point, demonstrate the potential for individual
questions to predominate. For reasons known to the plaintiffs, they have chosen to pursue a class claim
challenging the failure to provide a specific accommodation, not a class claim challenging
a systemwide policy governing the process through which accommodations for all deaf or hard-of-hearing employees are addressed or provided.5 Unlike the case the plaintiffs
claim could "serve[] as a useful model for the management of the instant proceedings,"
Pl. Supp. Mem. 15, Bates v. United Parcel Service, 204 F.R.D. 440 (N.D. Cal. 2001),
which expressly states that the class claims involved "do not challenge the
accommodations provided to particular individuals...[r]ather, 'at issue is the process that
UPS follows in addressing (and failing to address) communication barriers and
determining what jobs deaf workers can hold..." id. at 445-46, the plaintiffs here allege
that USPS must provide a specific accommodation -- qualified ASL interpreters. This
failure to either allege, or identify, a set of facts that might support a theory that an
alleged refusal to provide qualified ASL interpreters necessarily impacts the ability of
5 See, e.g., Siddiqi v. Regents ofthe University of California, 2000 WL 33190435, at *3, *6 (N.D: Cal., Sept. 6, 2000) (certifying class action by deaf or hard-of-hearing students where class claims alleged that university policies governing the termination or cancellation of acco=odations resulted in the denial of meaningful access to educational programs, and where the issue of whether reasonable acco=odation was provided to each named plaintiff woUld be litigated in second phase); Guckenberger v. Boston University, 957 F.Supp. 306, 326 (D. Mass. 1997) (certifying class action by learning disabled students, but noting that "[t]he plaintiffs here are not challenging the university's failure to acco=odate particular students, nor are they seeking to secure a specific acco=odation for any particular type of learning disability.").
10

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 11 of 12
putative class members to perform essential functions of their job leaves unaddressed the commonality and typicality requirements of Rule 23. In sum, merely alleging that the USPS refusal to provide qualified ASL interpreters, as opposed to other interpreters or signers, has "caus[ed] them to suffer frustration, anxiety, embarrassment, and distress" does not satisfy these requirements. Compl. "t[ 94. Since the class claim will ultimately hinge on whether USPS is required by law to provide a specific accommodation to deaf or hard-of-hearing employees, the plaintiffs must at least allege a common injury, such as the inability to perform an essential function, to meet the commonality and typicality requirements of Rule 23. Accordingly, the Court will strike without prejudice the class claims of the Complaint and this action will proceed as to the claims of the five named plaintiffs.
ORDER
1t-. For the reasons set forth above, it is this .2{: day of May, 2004, hereby
ORDERED that the defendant's Motion to Strike or Dismiss Class Action Allegations of the Complaint [#10] is GRANTED without prejudice; and it is further
ORDERED that the plaintiffs' Motion to Compel [#18] is GRANTED in part; and it is further
ORDERED that the defendant shall respond to the plaintiffs' First Set of Interrogatories and Document Requests on or before July 1, 2004, and that such response
11

Case 1:03-cv-01062-RJL Document 29 Filed 05/26/04 Page 12 of 12
to shall be limited to those interrogatories and document requests that are relevant to the claims of the named plaintiffs, unless the plaintiffs file an amended Complaint, in which case the parties may re-file any necessary motions governing the scope of discovery; and it is further
ORDERED that the defendant's Motion for Protective Order [#20] is DENIED. SO ORDERED.
United States District Judge

12

- - ~---~

~~~------------

 
 Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 1 of 37 EXHIBIT 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRUCE C. HUBBARD, 3700 S. Westport Ave., )

#4040 Sioux Falls, SD 57106; JAMES

)

GRALUND, 6210 W. 108th Place, Westminster, )

CO 80020; JUDY M. SCHULD, 22669

)

Lenox Drive, Fairview Park, OH 44126; GRACE J. )

SHIRK-EMMONS, 1961 New Street, East

)

Petersburg, PA 17552; LUCY I. STIEGLITZ,

)

216 S.E. 33rd Street, Oklahoma City, OK 73129; )

DANIEL TIGHE, 13682 W. Utah Circle,

)

Lakewood, CO 80228; SUSAN TIGHE

)

13682 W. Utah Circle, Lakewood, CO 80228; )

GAIL WALKER, 3136 Randy Road, Lancaster, PA )

17601-1431; GEORGE R. WESTENBERGER, )

5711 Meadowbrook Drive, Harrisburg, PA 17112; )

DIANE WHITENER, 13682 W. Utah Circle,

)

Lakewood, CO 80228; and ARLEN WHITSIT, )

301 Scranton St., Aurora, CO 80011,

)

individually and on behalf of a class of persons )

similarly situated,

)

)

Plaintiffs, )

)

v.

)

)

PATRICK R. DONAHOE,1 POSTMASTER

)

GENERAL, UNITED STATES

)

POSTAL SERVICE,

)

)

Defendant. )

)

Civil Action No: 03-1062 (RJL/JMF) Jury Trial Demanded

THIRD AMENDED CLASS ACTION COMPLAINT

1 On October 25, 2010, Patrick R. Donahoe succeeded John E. Potter as Postmaster General of the United States Postal Service.

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 2 of 37
Plaintiffs, James Gralund, Bruce C. Hubbard, Judy M. Schuld, Grace J. Shirk-Emmons, Lucy I. Stieglitz, Daniel Tighe, Susan Tighe, George R. Westenberger, Diane Whitener, and Arlen Whitsit, individually and on behalf of a class of similarly situated persons, state against Defendant as follows:
I. Introduction and Overview 1. This lawsuit results from systematic civil rights violations committed by the
United States Postal Service (“USPS” or “Postal Service”) against deaf and hard-of-hearing employees. The USPS has repeatedly denied these hearing impaired employees reasonable accommodations for their hearing impairments and ignored their complaints of discrimination.
2. Plaintiffs file this class complaint because the USPS has discriminated against hundreds, if not thousands, of hearing impaired employees in violation of § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (“Rehabilitation Act” or “Act”). The USPS has engaged in a pattern and practice of failing to provide reasonable accommodations for its deaf and hard-of-hearing employees at mandatory workplace events. The reasonable accommodations that the USPS has failed to provide are necessary to enable hearing impaired employees to perform the essential functions of their jobs. The USPS has also created a hostile work environment for hearing impaired employees and has denied them necessary assistance in locating and pursuing promotional (higher level) work opportunities within the USPS.
3. Plaintiffs seek to represent two classes. The first is composed of all current and former Deaf or Hard of Hearing Employees who were employed by the Postal Service between November 14, 2001, and the present, who allege that: (1) they were denied communication accommodations, including interpreters, for critical workplace meetings and events; (2) they were denied Telecommunication Devices for the Deaf (TTYs) for phone communications;
2

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 3 of 37
(3) they were denied emergency evacuation notification systems; (4) they were subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) they were denied promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment. The second class that Plaintiffs seek to represent is composed of all current Deaf or Hard of Hearing Employees who allege that: (1) they were denied communication accommodations, including interpreters, for critical workplace meetings and events; (2) they were denied Telecommunication Devices for the Deaf (TTYs) for phone communications; (3) they were denied emergency evacuation notification systems; (4) they were subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) they were denied promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment. For purposes of this Complaint, “Deaf or Hard of Hearing Employees” is defined to include any employee who is classified by USPS under disability classification codes 15, 16, or 17. USPS disability classification code 15 is defined as “hard of hearing, corrected by hearing aid.” E.g., Postal Service Form 2489: Identification of Physical/Mental Disability. USPS disability classification code 16 is defined as “total deafness with understandable speech.” Id. USPS disability classification code 17 is defined as “total deafness with inability to speak clearly.” Id. II. Jurisdiction and Venue
4. The USPS’s national headquarters are located in Washington, D.C., and nationwide policies, including those that concern providing reasonable accommodations to hearing impaired employees, are issued from the headquarters.
3

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5. This Court has jurisdiction over Plaintiffs’ Rehabilitation Act claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4).
6. Venue is proper in this district pursuant to 42 U.S.C. § 2000e-5(f)(3). III. Parties
7. Plaintiff James Gralund is a resident of Westminster, Colorado. Mr. Gralund has been employed by USPS as a mail handler at the Denver General Mail Facility for approximately 30 years. Mr. Gralund is hearing impaired and has been classified under USPS disability classification code 17. Mr. Gralund falls within the protected class of persons under the Rehabilitation Act.
8. Plaintiff Bruce C. Hubbard is a resident of Sioux Falls, South Dakota. Prior to retiring in November 2007, he had been employed by the USPS for over 30 years. Mr. Hubbard worked at the Brentwood facility in Washington, D.C., for 15 years, until its closure due to anthrax contamination on October 21, 2001. Following the temporary closure of the Brentwood facility, he worked at the Suburban Processing and Distribution Center, located at 16501 Shady Grove Road, Gaithersburg, Maryland 20898-9998 (“Gaithersburg facility”) as a mail processing clerk. From November 2005 until his retirement, Mr. Hubbard worked at the re-opened Brentwood facility and a USPS facility located at Baltimore-Washington International Airport (“BWI facility”). Mr. Hubbard is hearing impaired and has been classified under USPS disability classification code 17. Mr. Hubbard falls within the protected class of persons under the Rehabilitation Act.
9. Plaintiff Judy M. Schuld is a resident of Fairview Park, Ohio. She has been employed by the USPS for over 16 years and works as a mail processing clerk at the AMC Cleveland facility, located at 5801 Postal Road, Cleveland, Ohio 44181 (“Cleveland facility”).
4

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 5 of 37
Ms. Schuld is hearing impaired and has been classified under USPS disability classification code 16. Ms. Schuld falls within the protected class of persons under the Rehabilitation Act.
10. Plaintiff Grace J. Shirk-Emmons is a resident of East Petersburg, Pennsylvania. She has been employed by the USPS for over 20 years and works as a mail processing clerk at the Processing and Distribution Center located at 1400 Harrisburg Pike, Lancaster, Pennsylvania (“Lancaster facility”). Mrs. Shirk-Emmons is hearing impaired and has been classified under USPS disability classification code 17. Mrs. Shirk-Emmons falls within the protected class of persons under the Rehabilitation Act.
11. Plaintiff Lucy I. Stieglitz is a resident of Oklahoma City, Oklahoma. She has been employed by the USPS for over 18 years and works as a mail processing clerk at the Oklahoma City Main Postal Facility located at 320 S.W. 5th Street, Oklahoma City, Oklahoma 73125 (“Oklahoma City facility”). Ms. Stieglitz is hearing impaired and has been classified under USPS disability classification code 17. Ms. Stieglitz falls within the protected class of persons under the Rehabilitation Act.
12. Plaintiff Daniel Tighe is a resident of Lakewood, Colorado. Mr. Tighe has been employed by the USPS as a FSM clerk at the Denver General Mail Facility for approximately 30 years. Mr. Tighe is hearing impaired and has been classified under USPS disability classification code 17. Mr. Tighe falls within the protected class of persons under the Rehabilitation Act.
13. Plaintiff Susan Tighe is a resident of Lakewood, Colorado. Ms. Tighe was employed by the USPS as a TACS clerk at the Denver General Mail Facility for approximately 24 years prior to her retirement on or about January 31, 2004. Ms. Tighe is hearing impaired and
5

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 6 of 37
has been classified under USPS disability classification code 17. Ms. Tighe falls within the protected class of persons under the Rehabilitation Act.
14. Plaintiff Gail Walker is a resident of Lancaster, Pennsylvania. Ms. Walker has been employed by the USPS at the Lancaster facility for approximately 28 years. During her tenure, Ms. Walker has been employed in various mail processing positions. Ms. Walker is hearing impaired and has been classified under USPS disability classification code 15. Ms. Walker falls within the protected class of persons under the Rehabilitation Act.
15. Plaintiff George R. Westenberger is a resident of Harrisburg, Pennsylvania. Prior to retiring on or about October 31, 2003, Mr. Westenberger had been employed by the USPS for over 28 years. Mr. Westenberger worked in various mail processing positions at the Keystone Station Branch of the Processing and Distribution Center located at 813 Market Street, Harrisburg, Pennsylvania 17105 (“Harrisburg facility”). Mr. Westenberger is hearing impaired and has been classified under USPS disability classification code 16. Mr. Westenberger falls within the protected class of persons under the Rehabilitation Act.
16. Plaintiff Diane Whitener is a resident of Lakewood, Colorado. She has been employed by the USPS as a TACS clerk at the Denver General Mail Facility for approximately 28 years. Ms. Whitener is hearing impaired and has been classified under USPS disability classification code 17. Ms. Whitener falls within the protected class of persons under the Rehabilitation Act.
17. Plaintiff Arlen Whitsit is a resident of Aurora, Colorado. Mr. Whitsit was employed by the USPS as a TACS clerk at the Denver General Mail Facility for approximately 30 years prior to his retirement on or about May 2, 2003. Mr. Whitsit is hearing impaired and has
6

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 7 of 37
been classified under USPS disability classification code 17. Mr. Whitsit falls within the protected class of persons under the Rehabilitation Act.
18. Defendant, United States Postal Service, is an independent establishment of the executive branch of the federal government with an annual operating revenue of $67.1 billion. The USPS is responsible for the delivery of mail to almost 138 million homes, businesses, and post office boxes. According to USPS records, as of March 2011, the USPS employed more than 3,000 deaf and hard of hearing employees. Additionally, there are approximately 3,000 deaf and hard of hearing individuals who were previously employed by the USPS at some point since November 2001. IV. Administrative Procedural History
A. Plaintiff Hubbard’s First EEO Complaint 19. On or about October 19, 1998, Plaintiff Bruce C. Hubbard (“Hubbard”), a hearing impaired USPS employee working at the Brentwood facility, initiated administrative proceedings by filing a timely request for EEO counseling. Mr. Hubbard complained that, on September 5, 1998, and thereafter, the USPS discriminated against him based upon his physical disability (hearing impairment) by denying him a reasonable accommodation -- specifically, a sign language interpreter -- during work meetings. Thereafter, on January 12, 1999, Mr. Hubbard agreed to resolve his discrimination claim by participating in the USPS’s REDRESS Program. After a formal mediation in March and April 1999, Mr. Hubbard and the USPS agreed in principle that the USPS would, inter alia, provide contract interpreters at daily impromptu meetings. Subsequently, the USPS has made no effort to do so. 20. On April 24, 2000, Mr. Hubbard requested a Right to File a Discrimination Complaint, which was granted. Mr. Hubbard filed a formal EEO Complaint of Discrimination
7

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 8 of 37
with the USPS’s Office of EEO Compliance and Appeals, Capital Metro Operations, on or about February 20, 2001, alleging that the USPS failed to provide him with a reasonable accommodation -- specifically, a sign language interpreter -- during work meetings.
21. On or about August 28, 2001, the USPS informed Mr. Hubbard that it had completed its investigation of his formal complaint of discrimination. Mr. Hubbard then requested a hearing before an EEOC Administrative Judge. By Acknowledgment Order dated December 3, 2001, the EEOC Washington Field Office stated that it had received Mr. Hubbard’s request for a hearing. Thereafter, the case proceeded in the EEOC Washington Field Office as EEOC No. 100-A1-8026X, Agency No. 1K-201-0037-99.
22. In October 2001, the seriousness of Mr. Hubbard’s complaint was tragically underscored when the USPS closed the Brentwood facility due to anthrax contamination that resulted in the deaths of two Brentwood employees.2 In the year following this tragedy, the USPS’s mail-processing methods and the health and safety of its employees came under increased scrutiny from federal, state and local government; the media; and the public.
23. On September 27, 2002, pursuant to 29 C.F.R. § 1614.106(d) and 29 C.F.R. § 1614.204(b),3 Mr. Hubbard filed a motion with the EEOC Washington Field Office to amend his individual complaint to assert class allegations and—in conjunction with four other Plaintiffs

2

On October 21, 2001, the USPS closed the Brentwood facility due to anthrax

contamination. The Brentwood facility has since re-opened and is now named the Curseen and

Morris Processing & Distribution Center, in honor of the two USPS employees who passed away

due to anthrax exposure at the Brentwood facility.

3

A complainant may move for class certification “at any reasonable point in the process

when it becomes apparent that there are class implications to the claim raised in an individual

complaint.” 29 C.F.R. § 1614.204(b).

8

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 9 of 37

(Ms. Schuld, Ms. Shirk, Ms. Stieglitz and Mr. Westenberger),4 all of whom are hearing impaired and had experienced the same discrimination as Mr. Hubbard—also moved for class certification. As a part of these filings, Plaintiffs filed an Amended Class Complaint. Mr. Hubbard, Ms. Schuld, Ms. Shirk, Ms. Stieglitz, and Mr. Westenberger were named plaintiffs in the Amended Class Complaint.
24. On October 23, 2002, Plaintiffs filed with the EEOC Washington Field Office an Amended Class Complaint (Revised) to correct a minor, non-material error in the Amended Class Complaint.
25. No final action was taken by either the USPS or the EEOC. Mr. Hubbard complied with the administrative process and exhausted all administrative remedies.5
26. As a result, Mr. Hubbard, Ms. Schuld, Ms. Shirk, Ms. Stieglitz and Mr. Westenberger (collectively, the “Hubbard Plaintiffs”) were authorized to file a civil action in United States District Court. On May 14, 2003, the Hubbard Plaintiffs filed their first federal court complaint in this matter.
B. Plaintiff Hubbard’s Second EEO Complaint 27. On March 14, 2002, Plaintiff Hubbard again requested a Right to File a Discrimination Complaint, which was granted. Mr. Hubbard filed a second EEO Complaint of Discrimination with the USPS’s Office of EEO Compliance and Appeals, Capital Metro Operations, on or about March 14, 2002, alleging a class-wide failure by the USPS to provide

4

Ms. Shirk has since married. Her surname is now Shirk-Emmons.

5

At least one named plaintiff must exhaust his or her administrative remedies as a

condition precedent to sustaining a class action under the Rehabilitation Act. Thomas v. Reno,

943 F. Supp. 41, 43 (D.D.C. 1996) (citing Berger v. Iron Workers Reinforced Rodmen Local

201, 843 F.2d 1395 (D.C. Cir. 1988)).

9

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 10 of 37
reasonable accommodations -- specifically, sign language interpreters -- for hearing impaired employees at meetings, including anthrax-related safety meetings.
28. Following the USPS’s investigation of this second formal complaint of discrimination, Mr. Hubbard requested a hearing before an EEOC Administrative Law Judge, and the case thereafter proceeded in the EEOC Washington Field Office as EEOC No. 100-A37447X; Agency No. 1K-201-0013-02.
29. On May 14, 2003, Mr. Hubbard informed the Administrative Law Judge presiding over his second complaint of discrimination (EEOC No. 100-A3-7447X; Agency No. 1K-2010013-02) of his related federal court litigation filed that same day in the United States District Court for the District of Columbia.
30. By Dismissal Order dated May 22, 2003, the Administrative Law Judge dismissed Mr. Hubbard’s second complaint of discrimination (EEOC No. 100-A3-7447X; Agency No. 1K201-0013-02) “because Complainant has filed a civil action regarding the same matter.” Mr. Hubbard’s second EEO complaint is thus encompassed by the above-captioned case.
Class Action Allegations V. Definition of the Class
31. Plaintiffs bring this Third Amended Class Action Complaint on their own behalves and on behalf of a class of persons similarly situated, pursuant to the provisions of Fed. R. Civ. P. 23. This suit is properly maintainable as a class action under Fed. R. Civ. P. 23(b)(2) and 23(b)(3). Plaintiffs represent the following classes:
A. Class A: A Fed. R. Civ. P. 23(b)(2) class that seeks injunctive relief and is composed of all current Deaf or Hard of Hearing Employees employed by the Postal Service who allege that: (1) they were denied communication accommodations, including interpreters, for critical workplace meetings and 10

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 11 of 37
events; (2) they were denied Telecommunication Devices for the Deaf (TTYs) for phone communications; (3) they were denied emergency evacuation notification systems; (4) they were subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) they were denied promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment. B. Class B: A Fed. R. Civ. P. 23(b)(3) class that seeks monetary relief and is composed of all current and former Deaf or Hard of Hearing Employees who were employed by the Postal Service between November 14, 2001, and the present, who allege that: (1) they were denied communication accommodations, including interpreters, for critical workplace meetings and events; (2) they were denied Telecommunication Devices for the Deaf (TTYs) for phone communications; (3) they were denied emergency evacuation notification systems; (4) they were subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) they were denied promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment. VI. Systematic Discriminatory Practices Common to the Class 32. The USPS has a method for identifying and classifying its disabled employees nationwide, including hearing impaired employees. Specifically, the USPS identifies deaf or hard or hearing employees using disability classification codes 15, 16, or 17. USPS disability classification code 15 is defined as “hard of hearing, corrected by hearing aid.” E.g., Postal Service Form 2489: Identification of Physical/Mental Disability. USPS disability classification
11

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 12 of 37
code 16 is defined as “total deafness with understandable speech.” Id. USPS disability classification code 17 is defined as “total deafness with inability to speak clearly.” Id. According to USPS documents, as of October 12, 2004, the USPS employed approximately 4,234 employees who had been classified under disability codes 15, 16, or 17. See Business Proposal for Video Relay Service and Video Remote Interpreter Service (Jan. 7, 2005).
33. The USPS has engaged, and continues to engage, in a nationwide practice of failing to provide reasonable accommodations to hearing impaired employees. With few exceptions, this systemic practice exists at USPS facilities across the country. Through such practice, the USPS has discriminated against its hearing impaired employees based on physical disability in violation of the Rehabilitation Act.
34. The USPS regularly holds mandatory work meetings, training sessions, and other workplace events that USPS employees, including those employees who are hearing impaired, are required to attend. Because attendance at these events is mandatory, they constitute an essential job function for those employees required to attend them.6
35. The USPS has routinely failed to provide reasonable accommodations for hearing impaired employees at these mandatory workplace events. As a result, hearing impaired employees cannot understand the information presented and are unable to participate in any meaningful way in these mandatory workplace events.

6

See Meyer v. Iowa Mold Tooling Co., Inc., 141 F. Supp. 2d 973, 986 (N.D. Iowa 2001)

(“If meetings are mandatory, that requirement suggests that the employer’s judgment is that they

comprise an essential function of all of the positions of employees required to attend.”)

(emphasis in original).

12

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36. The USPS has also created a hostile work environment for hearing impaired employees and has denied them necessary assistance in locating and pursuing promotional (higher level) work opportunities within the USPS.
37. As noted, Plaintiffs are the following current and former hearing impaired USPS employees: James Gralund (Denver General Mail Facility, Denver, Colorado), Bruce C. Hubbard (Brentwood facility, Washington, D.C.), Judy M. Schuld (Cleveland facility, Cleveland, Ohio), Grace J. Shirk-Emmons (Lancaster facility, Lancaster, Pennsylvania), Lucy I. Stieglitz (Oklahoma City facility, Oklahoma City, Oklahoma), Daniel Tighe (Denver General Mail Facility, Denver, Colorado), Susan Tighe (Denver General Mail Facility, Denver, Colorado), Gail Walker (Lancaster facility, Lancaster, Pennsylvania), George R. Westenberger (Harrisburg facility, Harrisburg, Pennsylvania), Diane Whitener (Denver General Mail Facility, Denver, Colorado), and Arlen Whitsit (Denver General Mail Facility, Denver, Colorado).
A. James Gralund 38. Mr. Gralund has been employed with the USPS as a mail handler at the Denver General Mail Facility for approximately 30 years. Mr. Gralund is hearing impaired and has been classified under USPS disability classification code 17. 39. Mr. Gralund’s facility periodically holds required safety and staff meetings. Because these work meetings are mandatory, they constitute an essential function of Mr. Gralund’s job. 40. Mr. Gralund has requested from the USPS the provision of a sign language interpreter for various workplace meetings and events. However, the USPS has repeatedly failed to provide Mr. Gralund with a reasonable accommodation, such as qualified sign language interpreters, for required safety and staff meetings. Mr. Gralund has been forced to rely on
13

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 14 of 37
inadequate substitutes, such as hand written notes and unreliable signed interpretation from a fellow employee who is not certified in sign language interpretation.
41. For example, on October 18, 2001, at 9:00 a.m., Mr. Gralund requested a sign language interpreter from his supervisor, Karl Bartsch. Mr. Gralund did not receive an interpreter and filed a grievance. On November 15, 2001, November 29, 2001, December 5, 2001, January 26, 2002, and February 7, 2002, Mr. Gralund again requested a sign language interpreter and again was not provided with that accommodation. On more than one occasion, Mr. Gralund was left out of work meetings because an interpreter was not obtained to translate for him.
42. Because the USPS has failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, Mr. Gralund cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Mr. Gralund’s job. However, Mr. Gralund is unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Mr. Gralund’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause him, great anxiety, frustration, embarrassment, and distress.
43. The USPS’s failure to provide reasonable accommodations, such as qualified sign language interpreters, at mandatory workplace events is a continuing problem for Mr. Gralund.
B. Bruce C. Hubbard 44. Mr. Hubbard worked for the USPS for over 30 years. For 15 years, until its closure on October 21, 2001, he worked at the Brentwood facility. Following the temporary closure of the Brentwood facility, he worked at the Gaithersburg facility as a mail processing
14

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 15 of 37
clerk, and later at the Brentwood and BWI facilities before retiring in November 2007. Mr. Hubbard is hearing impaired and was classified under USPS disability classification code 17.
45. At the Brentwood facility, Mr. Hubbard’s supervisor held mandatory work meetings with employees approximately once a week. These mandatory work meetings typically lasted 30 minutes and addressed safety issues, work procedures, work assignments, and USPS policies. These work meetings served as a forum where employees asked questions and received immediate feedback from supervisors and co-workers. The USPS required all employees, including hearing impaired employees, to attend these work meetings. Because these work meetings were mandatory, they were an essential function of Mr. Hubbard’s job.
46. The USPS did not provide reasonable accommodations, such as qualified sign language interpreters, at these mandatory weekly work meetings. Without such an accommodation, it was virtually impossible for Mr. Hubbard to understand what was said at, or to participate in, these work and safety meetings. Over the course of his employment, Mr. Hubbard made numerous requests to the USPS management that qualified interpreters be provided at the mandatory weekly work meetings, including those where safety issues and procedures were discussed. The USPS generally denied these requests, often without explanation.
47. On October 21, 2001, the USPS closed the Brentwood facility due to anthrax contamination, and two Brentwood employees -- Joseph Curseen, Jr. and Thomas Morris, Jr. -died due to anthrax exposure. Curseen and Morris contracted pulmonary anthrax after handling mail at the Brentwood facility. In the days and weeks following the closure of Brentwood, the USPS held a number of meetings to provide employees with critical information about the anthrax crisis. The USPS failed to provide reasonable accommodations, such as qualified sign
15

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 16 of 37
language interpreters, at the vast majority of these important anthrax-related meetings. Mr. Hubbard attended anthrax-related meetings on various dates in October and November 2001, including but not limited to October 21 and 29 and November 23 and 28; the USPS provided no qualified interpreters at these meetings. Because a qualified interpreter was not provided, Mr. Hubbard could not understand what was said at these important safety meetings. He repeatedly complained to his supervisors that he could not understand what was said at these meetings without the assistance of a qualified interpreter.
48. Because the USPS failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, despite Mr. Hubbard’s repeated requests, Mr. Hubbard could not understand the important health, safety, and job information that was provided at these meetings. Because these meetings were mandatory, they constituted an essential function of Mr. Hubbard’s job. However, Mr. Hubbard was unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Mr. Hubbard’s lack of access to important information and inability to participate at meetings caused him great anxiety, frustration, embarrassment, and distress.
49. These effects were exacerbated by the anthrax crisis, during which USPS failed to provide Mr. Hubbard and other hearing impaired employees with critical information about this potentially life-threatening situation in a timely manner.
C. Judy M. Schuld 50. Judy M. Schuld has been employed by the USPS for over 19 years. She works as a mail processing clerk at the AMC Cleveland facility. Ms. Schuld is hearing impaired and has been classified under USPS disability classification code 16.
16

Case 1:03-cv-01062-RJL Document 149 Filed 10/19/12 Page 17 of 37
51. At the Cleveland facility, there are typically daily mandatory work meetings that provide employees with timely information about important events affecting their working conditions, including workplace safety, performance, training, discipline, and productivity. In addition, employees receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain guidance from their supervisors regarding issues that affect their particular work area. The work meetings typically last between 30 and 40 minutes. Because these work meetings are mandatory, they constitute an essential function of Ms. Schuld’s job.
52. The USPS does not provide reasonable accommodations, such as qualified sign language interpreters, at these mandatory work meetings, including those meetings where safety issues and procedures are discussed. Without a qualified interpreter, it is virtually impossible for Ms. Schuld to understand what is said at, or to participate in, these mandatory work meetings. Ms. Schuld has frequently requested that qualified sign language interpreters be provided at these mandatory work meetings without success. When Ms. Schuld asks her supervisors what questions were asked at a mandatory work meeting, they typically brush her off.
53. Since October 2001, the USPS has faced anthrax contamination in a number of its facilities. In late fall of 2001, the USPS held a meeting at the Cleveland facility during which the USPS management met with the employees for a safety talk concerning anthrax and other bioterrorism issues. The USPS provided no reasonable accommodation for hearing impaired employees, such as sign language interpreters, at this important meeting. Prior to this meeting, Ms. Schuld had noticed that her hearing co-workers had begun to take special precautions when handling mail—for example, wearing gloves. When Ms. Schuld asked her supervisor what prompted these precautionary measures, he told her that it was because of anthrax and that he would bring Ms. Schuld a pair of gloves. Ms. Schuld did not know what anthrax was at that
17

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time. Unlike the hearing employees, it was not until a few hours after the anthrax meeting that the USPS provided gloves to the hearing impaired employees.
54. In December 2001, a white substance believed to be anthrax was found at a downtown Cleveland USPS facility. Although the USPS made Ms. Schuld’s hearing colleagues aware of this incident, the USPS did not provide similar information to hearing impaired employees.
55. Because the USPS has failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, Ms. Schuld cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Ms. Schuld’s job. However, Ms. Schuld is unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Ms. Schuld’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause her, anxiety, frustration, embarrassment, and distress.
56. This ongoing situation was exacerbated by the anthrax crisis during which the USPS failed to provide Ms. Schuld and other hearing impaired employees with critical safety information about this potentially life-threatening situation in a timely manner.
57. The USPS’s failure to provide reasonable accommodations, such as qualified sign language interpreters, at mandatory workplace events is a continuing problem for Ms. Schuld.
D. Grace J. Shirk- Emmons 58. Grace J. Shirk-Emmons has been employed by the USPS for over 20 years. She works as a mail processing clerk at the Lancaster facility, which is a Processing and Distribution
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Center. Mrs. Shirk-Emmons is hearing impaired and has been classified under USPS disability classification code 17.
59. At the Lancaster facility, there are occasionally daily as well as weekly mandatory work meetings at which supervisors and employees discuss important work-related issues such as safety, work procedures, changes in work assignments and policies, disciplinary rules, and training opportunities, among other topics. The mandatory work meetings typically last between 10 and 20 minutes, though they can sometimes continue up to one hour in duration. These work meetings provide employees with timely information about important events that affect their working conditions. Employees also receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain timely guidance from supervisors regarding specific issues in their work area. Because these work meetings are mandatory, they constitute an essential function of Mrs. Shirk-Emmons’s job.
60. The USPS does not provide reasonable accommodations for hearing impaired employees, such as qualified sign language interpreters, at these mandatory work meetings, including those meetings where safety issues are discussed. Without a qualified interpreter, it is virtually impossible for Mrs. Shirk-Emmons to understand what is said at, or to participate in, these mandatory work meetings. Mrs. Shirk-Emmons has requested that qualified interpreters be provided at mandatory work meetings, but her requests have been denied.
61. Since October 2001, the USPS has faced anthrax contamination in a number of its facilities. In the days and weeks following the closure of the Brentwood facility due to anthrax contamination, the Lancaster facility held a number of meetings to provide employees with critical safety information about the anthrax crisis. The USPS failed to provide reasonable accommodations for hearing impaired employees, such as qualified sign language interpreters, at
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the vast majority of these anthrax-related safety meetings. Because a qualified interpreter was not provided, Mrs. Shirk-Emmons could not understand what was said at these important safety meetings.
62. Because the USPS has failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, Mrs. Shirk-Emmons cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Mrs. ShirkEmmons’s job. However, Ms. Shirk-Emmons is unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Mrs. Shirk-Emmons’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause Mrs. Shirk-Emmons, great anxiety, frustration, embarrassment, and distress.
63. This ongoing situation was exacerbated by the anthrax crisis, during which the USPS failed to provide Mrs. Shirk-Emmons and other hearing impaired employees with critical safety information about this potentially life-threatening situation in a timely manner.
64. The USPS’s failure to provide reasonable accommodations, such as qualified sign language interpreters, at mandatory workplace events is a continuing problem for Mrs. ShirkEmmons.
E. Lucy I. Stieglitz 65. Lucy I. Stieglitz has worked for the USPS for over 18 years. She works as a mail processing clerk at the Oklahoma City facility. Ms. Stieglitz is hearing impaired and has been classified under USPS classification code 17.
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66. At the Oklahoma City facility, there are typically weekly mandatory work meetings that provide employees with timely information about important events affecting their working conditions, such as workplace safety, performance, discipline, training, and productivity issues. In addition, employees receive immediate feedback on their questions, benefit from questions asked by their co-workers, and obtain timely guidance from their supervisors regarding issues that affect their particular work area. The work meetings typically last for one hour. Because these work meetings are mandatory, they constitute an essential function of Ms. Stieglitz’s job.
67. The USPS does not provide reasonable accommodations for hearing impaired employees, such as qualified sign language interpreters, at these mandatory work meetings, including those meetings where safety issues are discussed. Without a qualified sign language interpreter, it is virtually impossible for Ms. Stieglitz to understand what is said at, or to participate in, these work meetings.
68. Ms. Stieglitz worked in the Automation group for approximately one year, until February 2002. Her supervisor would call work meetings every week, but would not announce them to Ms. Stieglitz. Often, Ms. Stieglitz was left alone at her work station while her hearing co-workers were at a work meeting. When Ms. Stieglitz was aware of a work meeting, she would attend, but do little more than sit and stare at the ceiling since she could not understand what was said because the USPS did not provide a qualified sign language interpreter. Ms. Stieglitz repeatedly requested that qualified sign language interpreters be provided at work meetings, but the USPS repeatedly denied her requests.
69. At the close of each mandatory work meeting, the USPS expected Ms. Stieglitz to sign a form, attesting that she had attended the meeting and understood the contents of what was
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discussed. Ms. Stieglitz regularly refused to sign this form because, without a qualified sign language interpreter, she could not understand the information presented and discussed at these mandatory meetings.
70. Since October 2001, the USPS has faced anthrax contamination in a number of its facilities. In late fall of 2001, the USPS organized a mandatory safety meeting at the Oklahoma City facility at which a physician from the Centers for Disease Control met with all employees for a safety talk concerning anthrax and other bio-terrorism issues. The USPS did not provide reasonable accommodations for hearing impaired employees, such as qualified sign language interpreters, at this important meeting. Although the USPS convened several meetings for hearing employees to discuss the anthrax crisis, the USPS invited Ms. Stieglitz and the other deaf employees to attend only one such meeting. Even at that meeting, the USPS failed to provide a qualified sign language interpreter and, instead, provided only an unqualified “signer.” As a result, Ms. Stieglitz and other deaf employees were unable to comprehend the important safety information presented at this meeting.
71. Because the USPS has failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, Ms. Stieglitz cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Ms. Stieglitz’s job. However, Ms. Stieglitz is unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Ms. Stieglitz’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause her, great frustration, anxiety, embarrassment, and distress.
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72. This situation, which continues even today, was exacerbated by the anthrax crisis, during which the USPS failed to provide Ms. Stieglitz and other hearing impaired employees with critical information about the potentially life-threatening situation in a timely manner.
73. The USPS’s failure to provide reasonable accommodations, such as qualified sign language interpreters, at mandatory workplace events is a continuing problem for Ms. Stieglitz.
F. Daniel Tighe 74. Mr. Tighe has been employed as an FSM clerk at the Denver General Mail Facility for approximately 30 years. Mr. Tighe is hearing impaired and has been classified under USPS classification code 17. 75. Mr. Tighe’s facility periodically holds required safety and staff meetings. Because these work meetings are mandatory, they constitute an essential function of Mr. Tighe’s job. 76. Mr. Tighe has requested the provision of a sign language interpreter for various workplace meetings and events. However, the USPS has repeatedly failed to provide Mr. Tighe with a reasonable accommodation, such as qualified sign language interpreters, for required safety and staff meetings. 77. Because the USPS has failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, Mr. Tighe cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Mr. Tighe’s job. However, Mr. Tighe is unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Mr.
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Tighe’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause him, great frustration, anxiety, embarrassment, and distress.
G. Susan Tighe 78. Ms. Tighe was employed as a TACS clerk at the Denver General Mail Facility for approximately 24 years prior to her retirement in 2004. Ms. Tighe is hearing impaired and was classified under USPS classification code 17. 79. Ms. Tighe’s facility periodically held required safety and staff meetings. Because these work meetings were mandatory, they constituted an essential function of Ms. Tighe’s job. 80. While employed, Ms. Tighe requested the provision of a sign language interpreter for various workplace meetings and events. However, the USPS repeatedly failed to provide Ms. Tighe with a reasonable accommodation, such as qualified sign language interpreters, for required safety and staff meetings. 81. Because the USPS failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety was discussed, Ms. Tighe was unable to understand the important health, safety, and job information that was provided at these meetings. Because these meetings were mandatory, they constituted an essential function of Ms. Tighe’s job. However, Ms. Tighe was unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Ms. Tighe’s lack of access to important information and inability to participate at meetings caused her great frustration, anxiety, embarrassment, and distress.
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H. Gail Walker 82. Ms. Walker has been employed in various mail processing positions at the Lancaster facility for approximately 28 years. Ms. Walker is hearing impaired and has been classified under USPS classification code 15. 83. Ms. Walker’s facility periodically holds required safety and staff meetings. Because these work meetings are mandatory, they constitute an essential function of Ms. Walker’s job. 84. The USPS has repeatedly failed to provide Ms. Walker with a reasonable accommodation for required safety and staff meetings. Because the USPS has failed to provide reasonable accommodations at mandatory work meetings and meetings where safety is discussed, Ms. Walker cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Ms. Walker’s job. However, Ms. Walker is unable to understand the information presented or participate in these meetings in any meaningful way without a reasonable accommodation. Ms. Walker’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause her, great frustration, anxiety, embarrassment, and distress.
I. George R. Westenberger 85. George R. Westenberger worked for the USPS for over 28 years before his retirement in October 2003. He worked as a mail processing clerk at the Harrisburg facility. Mr. Westenberger is hearing impaired and was classified under USPS disability classification code 16.
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86. At the Harrisburg facility, there were weekly mandatory work meetings at which employees discussed and learned about important work-related issues such as safety, procedures, changes in work assignments and policies, disciplinary rules, and training opportunities, among other topics. The mandatory work meetings typically lasted between 20 and 30 minutes. The USPS also sent Mr. Westenberger to mandatory day-long training seminars at which he could not understand anything because the USPS did not provide a qualified interpreter. The mandatory weekly work meetings provided employees with timely information about important events that affect their working conditions, including important safety information. In addition, employees received immediate feedback on their questions, benefited from questions asked by their co-workers, and obtained timely guidance from supervisors regarding issues specific to their work area. Because these work meetings were mandatory, they constituted an essential function of Mr. Westenberger’s job.
87. The USPS did not provide reasonable accommodations for hearing impaired employees, such as qualified sign language interpreters, at these mandatory work meetings. Without a qualified interpreter, it was virtually impossible for Mr. Westenberger to understand what was said at, or to participate in, these mandatory work meetings. Mr. Westenberger asked for qualified sign language interpreters to be provided at mandatory work meetings, but the USPS denied his requests. Indeed, Mr. Westenberger was often asked to sign attendance registers for mandatory work meetings at the Harrisburg facility. Mr. Westenberger refused to sign these attendance registers because no qualified interpreters were provided at these mandatory work meetings.
88. Since October 2001, the USPS has faced anthrax contamination in a number of its facilities. At the Harrisburg facility, USPS management conducted numerous meetings
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regarding the dangers of anthrax and the precautions that should be taken. The USPS failed to provide reasonable accommodations for hearing impaired employees, such as qualified sign language interpreters, at all of these anthrax-related safety meetings. Mr. Westenberger asked that interpreters be provided, but the USPS denied his requests.
89. The USPS did not effectively communicate with Mr. Westenberger regarding anthrax issues. Mr. Westenberger never received any information concerning medications that he should take if he is exposed to anthrax. He saw posted and distributed to employees what appeared to be very complex medical information about the physical effects of anthrax and the medicine Ciprofloxacin, but he could not understand the information.
90. Because the USPS failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety was discussed, Mr. Westenberger was unable to understand the important health, safety, and job information that was provided at these meetings. Because these meetings were mandatory, they constituted an essential function of Mr. Westenberger’s job. However, Mr. Westenberger was unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Mr. Westenberger’s lack of access to important information and inability to participate at meetings caused him great frustration, anxiety, embarrassment, and distress.
91. The situation created by the USPS’s general failure to provide reasonable accommodations at mandatory workplace events was exacerbated by the anthrax crisis, during which the USPS failed to provide Mr. Westenberger and other hearing impaired employees with critical information about this potentially life-threatening situation in a timely manner.
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J. Diane Whitener 92. Ms. Whitener has been employed at the Denver General Mail Facility as a TACS for approximately 28 years. Ms. Whitener is hearing impaired and has been classified under USPS classification code 17. 93. Ms. Whitener’s facility periodically holds required safety and staff meetings. Because these work meetings are mandatory, they constitute an essential function of Ms. Whitener’s job. 94. Ms. Whitener has requested the provision of a sign language interpreter for various workplace meetings and events. However, the USPS has repeatedly failed to provide Ms. Whitener with a reasonable accommodation, such as qualified sign language interpreters, for required safety and staff meetings. 95. Because the USPS has failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety is discussed, Ms. Whitener cannot understand the important health, safety, and job information that is provided at these meetings. Because these meetings are mandatory, they constitute an essential function of Ms. Whitener’s job. However, Ms. Whitener is unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Ms. Whitener’s lack of access to important information and inability to participate at meetings have resulted in, and continue to cause her, great frustration, anxiety, embarrassment, and distress.
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K. Arlen Whitsit 96. Mr. Whitsit was employed as a TACS clerk at the Denver General Mail Facility for approximately 28 years prior to his retirement in May 2003. Mr. Whitsit is hearing impaired and was classified under USPS classification code 17. 97. Mr. Whitsit’s facility periodically held required safety and staff meetings. Because these work meetings were mandatory, they constituted an essential function of Mr. Whitsit’s job. 98. Mr. Whitsit requested the provision of a sign language interpreter for various workplace meetings and events. However, the USPS repeatedly failed to provide Mr. Whitsit with a reasonable accommodation, such as qualified sign language interpreters, for required safety and staff meetings. 99. Because the USPS failed to provide qualified sign language interpreters at mandatory work meetings and meetings where safety was discussed, Mr. Whitsit was unable to understand the important health, safety, and job information that was provided at these meetings. Because these meetings were mandatory, they constituted an essential function of Mr. Whitsit’s job. However, Mr. Whitsit was unable to understand the information presented or participate in these meetings in any meaningful way without the use of a qualified sign language interpreter. Mr. Whitsit’s lack of access to important information and inability to participate at meetings caused him great frustration, anxiety, embarrassment, and distress. VII. Class Treatment 100. A class action is superior to other available methods for the fair and efficient resolution of this controversy. Requiring class members to pursue their claims individually would entail a host of actions, with duplication of costs, attorneys’ fees, and resources. As
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noted, the USPS’s failure to provide reasonable accommodations to hearing impaired employees is a widespread problem that afflicts numerous USPS facilities across the country. The pervasive nature of USPS’s discrimination against hearing impaired employees can best be addressed by class action treatment. Further, the USPS has acted, and continues to act, in a manner generally applicable to the class as a whole, thereby making final injunctive relief appropriate to the class.
A. Rule 23(a) 101. The proposed classes satisfy all of the Fed. R. Civ. P. 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation.
1. Numerosity 102. The proposed classes are so numerous and geographically dispersed that the pursuit of individual actions by each class member is impracticable. According to USPS records, as of March 2011, the USPS employed more than 3,000 deaf and hard of hearing employees. Additionally, there are approximately 3,000 deaf and hard of hearing individuals who were previously employed by the USPS at some point since November 2001. Both Classes A and B therefore consist of thousands of hearing impaired USPS employees from across the country who have been denied reasonable accommodations for their hearing impairment at mandatory workplace events. Joinder of all class members is impracticable. 103. In the months following the anthrax outbreak in October and November 2001, USPS’s safety policies and work procedures became the focus of increased governmental and media scrutiny. During this period, it became evident that the precise issues that formed the basis of Mr. Hubbard’s February 20, 2001 complaint against USPS (i.e., failure to provide reasonable accommodations at mandatory workplace events) were not unique to Brentwood, but were being experienced by hearing impaired USPS employees at USPS facilities across the country. As demonstrated by the named Plaintiffs, the USPS’s discrimination against its hearing
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impaired employees through its failure to provide reasonable accommodations at mandatory workplace events continues to occur at USPS facilities in Washington, D.C.; Cleveland, Ohio; Lancaster, Pennsylvania; Oklahoma City, Oklahoma; Harrisburg, Pennsylvania; and Denver, Colorado. The named Plaintiffs, however, represent only a small sample of hearing impaired employees faced with the USPS’s failure to provide reasonable accommodations.
2. Commonality 104. There are questions of law and fact common to the classes that predominate over individual questions, including but not limited to whether the USPS has discriminated, and continues to discriminate, against its hearing impaired employees in violation of the Rehabilitation Act by engaging in a nationwide practice of failing to provide reasonable accommodations for these employees at mandatory workplace events. Mandatory workplace events occur at USPS facilities throughout the country, and the USPS’s failure to provide reasonable accommodations at these meetings affects hearing impaired employees’ ability to perform the essential functions of their jobs. Plaintiffs challenge the USPS’s practices and systemic failures that discriminate against the two classes as a whole.
3. Typicality 105. The claims of the Plaintiffs are typical of the claims of the two classes. The issues of fact presented by the allegations of each class are common to the classes as a whole (namely, the failure to provide reasonable accommodations at mandatory workplace events), and turn on questions of law that are applicable in the same manner to each member of the class. There is nothing about the nature of Plaintiffs’ claims, nor the circumstances surrounding them, that suggests that they are atypical of those of the class; rather, hearing impaired USPS employees nationwide share the very complaints made by Plaintiffs. Like the putative class members, Plaintiffs: (1) meet the definition of USPS disability classification codes 15, 16 or 17;
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and (2) have all been subject to the same challenged practices that are applied to the class as a whole -- namely, the USPS’s failure to provide reasonable accommodations for their hearing impairments at mandatory workplace events.
4. Adequacy of Representation 106. Plaintiffs and their legal representatives will fairly and adequately protect the interests of each of the two classes. Plaintiffs’ interests are not antagonistic to, but rather in unison with, the interests of the other class members; there is no evidence of any conflicts of interest between Plaintiffs and any members of the proposed classes. 107. Class counsel have extensive experience litigating class actions and are fully qualified to pursue the claims of the classes in this case. Specifically, Covington & Burling LLP (“Covington”) is a leading international law firm with over 500 lawyers practicing in Washington, D.C., New York, San Francisco, London, and Brussels, with expertise in all types of complex litigation and alternative dispute resolution proceedings. The lead attorney on this case, Covington partner Thomas S. Williamson, Jr., a former Solicitor of Labor for the United States Department of Labor, has broad experience in employment law matters and has previously handled complex class action cases. During the four years ending on September 30, 2002, he served as Chair of the Chevron Texaco Task Force on Equality and Fairness, an independent group of special masters established by Judge Charles L. Brieant of the Southern District of New York to oversee implementation of the settlement of a major class action race-discrimination case. 108. The Washington Lawyers’ Committee for Civil Rights and Urban Affairs (“Lawyers’ Committee”) is a public interest organization that, for over thirty years, has represented individuals and groups denied equal employment opportunities. The Lawyers’ Committee has handled over 5,000 civil rights cases and has been counsel to classes of plaintiffs
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in dozens of class actions that proceeded administratively and/or judicially, many of which were against federal agencies. Elaine Gardner is the Director of the Lawyers’ Committee’s Disability Rights Project. She has more than 35 years of experience litigating civil rights cases for deaf individuals, and experience litigating major class action lawsuits involving discrimination against individuals with disabilities.
109. McCollum & Associates, LLC (“the McCollum firm”) is a law firm located in College Park, Maryland with an active employment law practice. The McCollum firm has particular experience and expertise in litigating cases to ensure the civil rights of deaf people. For example, attorney Carla Mathers, who previously represented the Plaintiffs in this action, has 18 years experience as an attorney working with the deaf community and is a certified sign language interpreter.
110. The Law Office of Kevin C. Flesch, LLC, is a law firm located in Englewood, Colorado. Mr. Flesch has been practicing for 15 years and has extensive experience representing plaintiffs in a variety of matters, including employment discrimination cases.
B. Rule 23(b)(2) 111. The proposed Class A satisfies the Fed. R. Civ. P. 23(b)(2) requirement that the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). USPS’s treatment of deaf and hard of hearing employees is governed by a single set of nationwide policies that apply generally to all current Deaf and Hard of hearing Employees. Class A seeks broad injunctive relief that would effect a nationwide change in USPS’s policies and would apply uniformly to all class members. That relief does not depend on, or require, any individualized factual inquiry.
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C. Rule 23(b)(3) 112. The proposed Class B satisfies the Fed. R. Civ. P. 23(b)(3) requirements of predominance and superiority. 113. With respect to Class B, common questions of fact and law predominate over any individualized issues. USPS’s treatment of deaf and hard of hearing employees is governed by a single set of nationwide policies. This single set of policies has resulted in class-wide discrimination and denial of effective communication accommodations, and the Plaintiffs seek damages for the consequences of this single set of nationwide policies. The Plaintiffs request damages based on a single formula that applies to all class members and allocates damages based on a few generalized factors, rather than highly specific, individualized assessments. 114. It would be far superior to litigate the Class B claims as a class action than as a series of individual claims. It would be inefficient and a waste of “time, effort, and expense” to force thousands of putative class members to bring thousands of individual lawsuits challenging the same nationwide policies. VIII. Cause of Action - Violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et
seq. 115. Plaintiffs reallege and incorporate by reference each and every allegation set forth above. 116. The USPS has repeatedly and unjustifiably denied Plaintiffs reasonable accommodations at mandatory workplace events, to which they are entitled under the Rehabilitation Act. All purported accommodations provided by USPS have been ineffective and were not reasonable under the law.
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117. In doing so, the USPS has discriminated against its hearing impaired employees by preventing them from understanding and participating in mandatory work meetings, thereby impeding their ability to perform an essential job function.
118. In addition, the USPS’s refusal to provide reasonable accommodations at mandatory workplace events has caused Plaintiffs and putative class members to suffer frustration, anxiety, embarrassment, and distress. These injuries took on a heightened importance in light of this country’s elevated state of terrorist alert and renewed efforts to address anthrax and other bioterrorism issues that have recently and disproportionately affected USPS employees across the country.
119. The USPS has also created a hostile work environment for hearing impaired employees and has denied them necessary assistance in locating and pursuing promotional (higher level) work opportunities within the USPS.
120. The Rehabilitation Act provides redress for Plaintiffs’ injuries. IX. Prayer for Relief
WHEREFORE, Plaintiffs, on behalf of the class, pray that the Court enter judgment against Defendant as follows: (i) Certify a class action, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), defining the class as:
All current Deaf or Hard of Hearing Employees employed by the Postal Service who allege that: (1) they were denied communication accommodations, including interpreters, for critical workplace meetings and events; (2) they were denied Telecommunication Devices for the Deaf (TTYs) for phone communications; (3) they were denied emergency evacuation notification systems; (4) they were subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) they were denied promotional opportunities and/or assistance to pursue promotional opportunities within the
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Postal Service due to their deafness or hearing impairment; (ii) Certify a class action, pursuant to Fed. R. Civ. P. 23(a) and (b)(3), defining the class as:
All current and former Deaf or Hard of Hearing Employees who were employed by the Postal Service between November 14, 2001, and the present, who allege that: (1) they were denied communication accommodations, including interpreters, for critical workplace meetings and events; (2) they were denied Telecommunication Devices for the Deaf (TTYs) for phone communications; (3) they were denied emergency evacuation notification systems; (4) they were subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) they were denied promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment; (iii) Appoint the named Plaintiffs as Class Representatives; (iv) Designate each of the undersigned counsel as Class Counsel; (v) Declare that the USPS’s practice of failing to provide reasonable accommodations for its hearing impaired employees at mandatory workplace events is a violation of the Rehabilitation Act; (vi) Enjoin the USPS nationwide from continuing to engage in discriminatory practices against its hearing impaired employees by failing to provide reasonable accommodations at mandatory workplace events in violation of the Rehabilitation Act; enabling a hostile work environment for hearing impaired employees; and denying hearing impaired employees necessary assistance in locating and pursuing promotional work opportunities within the USPS; (vii) Retain jurisdiction over the USPS until such time as the Court is satisfied the unlawful policies, practices, acts and omissions complained of herein no longer exist and will not recur; (viii) Grant all Class B Plaintiffs compensatory monetary damages, pursuant to 42 U.S.C. § 1981a, in an amount to be determined at trial for the emotional pain, suffering, inconvenience,
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mental anguish, and other nonpecuniary losses that Plaintiffs suffered because of the USPS’s failure to reasonably accommodate them; and (ix) Grant Plaintiffs reasonable attorneys’ fees, costs, and litigation expenses, and such other relief as may be just and equitable. X. Jury Demand Plaintiffs demand trial by jury on all issues so triable.
Respectfully submitted,

October 21 , 2011

/s/ Thomas S. Williamson, Jr. Thomas S. Williamson, Jr. #217729 Christopher M. Denig #457187 Covington & Burling LLP 1201 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 662-6000
Elaine Gardner #271262 Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 (202) 319-1000
James E. McCollum, Jr. #398117 McCollum & Associates, LLC P.O. Box 1717 Suite 117 College Park, MD 20741 (301) 864-6070
Kevin C. Flesch Law Office of Kevin C. Flesch, LLC 333 W. Hampden Avenue, Suite 710 Englewood, CO 80110
Attorneys for Plaintiffs

37

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRUCE HUBBARD, et al., Plaintiffs,
v.
PATRICK R. DONAHOE, Postmaster General, United States Postal Service,
Defendant.

) ) ) ) ) Civil Case No. 03-1062 (RJL) ) ) ) ) )

~~
MEMORANDUM OPINION (July~, 2013)

This is a Rehabilitation Act class action alleging that the United States Postal

Service ("USPS") failed to provide reasonable accommodations to current and former

deaf and hearing-impaired employees. After a decade of litigation and negotiations, the

parties now seek final approval of a stipulated settlement agreement that would resolve

this action as to the Proposed Settlement Classes. The Court held a fairness hearing

related to the settlement, as required by Federal Rule of Civil Procedure 23(e). The

arguments and representations made on the record during the Fairness Hearing are hereby

expressly incorporated and made part of this Memorandum Opinion. Having considered

the parties' pleadings, the arguments and representations made and the exhibits submitted

at the Fairness Hearing, the relevant statutes and caselaw, and the entire record herein,

the Court grants final approval of the $4.55 million Global Settlement Agreement

("Agreement") and awards class counsel $910,000 in attorneys' fees and $114,216.69 in

expenses from the total value of the settlement.

BACKGROUND
This class action stems from two related actions brought before the United States Equal Employment Opportunity Commission ("EEOC"). In late 1998, Bruce Hubbard requested EEO counseling, alleging that USPS denied him reasonable accommodations at the USPS Brentwood facility in Washington, D.C. See Third Am. Compl., Oct. 19, 2012 [Dkt #149] ~ 19. After a formal mediation in early 1999, Mr. Hubbard and USPS reached an agreement in principle that reasonable accommodations would be forthcoming. See id. Mr. Hubbard filed a subsequent EEO Complaint of Discrimination on or about February 20, 2001, again alleging that USPS denied him the reasonable accommodation of a sign language interpreter. !d. ~ 20. The case proceeded in the EEOC Washington Field Office as EEOC No. 100-A1-8026X, Agency No. 1K-2010037-99. !d.~ 21. On September 27, 2002, Mr. Hubbard amended his individual complaint to assert class allegations with four other plaintiffs, namely Judy M. Schuld, Grace J. Shirk-Emmons, Lucy I. Stieglitz, and George R. Westenberger (collectively, the "Hubbard Plaintiffs"). !d. ~ 23.
On May 14, 2003, the Hubbard Plaintiffs filed this class action suit on behalf of themselves and similarly situated current and former USPS employees, alleging violations of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. See Compl., May 14, 2003 [Dkt. #1]. They later filed two amended class action complaints specifically alleging violation of§ 501 of the Act. See First Am. Compl., Aug. 22, 2005 [Dkt. #58]; Second Am. Compl., July 10, 2006 [Dkt. #90]. On October 24, 2011, the Hubbard
2

Plaintiffs sought leave to file a Third Amended Complaint to add James Gralund, Daniel Tighe, Susan Tighe, Diane Whitener, and Arlen Whitsit from Tighe v. Potter, EEOC No. 1E-801-0070-04 (collectively, the "Tighe Plaintiffs"), as well as Gail Walker, as named plaintiffs. See Pis.' Unopposed Mot., Oct. 24, 2011 [Dkt #140].
After litigating before the EEOC and this Court for approximately nine years, the Hubbard Plaintiffs and USPS entered settlement discussions under the mediation program sponsored by this Court in March 2009. See Pis.' Memo in Support of Unopposed Mot. [Dkt #140] at 5. The parties were unable to reach agreement at that time. !d. In March 2010, the Hubbard Plaintiffs, together with the Tighe Plaintiffs, reinitiated settlement discussions with USPS. !d. The parties engaged a private mediator for a flat success fee of$150,000-$75,000 to be paid by the Department of Justice ("DOJ") and $75,000 to be paid by Covington & Burling LLP ("Covington"). See Decl. of Kenneth R. Feinberg [Dkt. #154] ~ 5. At the close of the mediation session in late 2010, the parties reached an agreement in principle, the terms of which the parties subsequently incorporated into the proposed Agreement. See Pis.' Memo in Support of Unopposed Mot. at 5.
In late 2011, plaintiffs filed an unopposed motion for preliminary approval of the proposed settlement. On October 19, 2012, the Court (1) granted plaintiffs' Motion for Leave to File a Third Amended Complaint, (2) certified the Proposed Settlement Classes, (3) appointed Class Representatives and Class Counsel, (4) granted preliminary approval of the Agreement, except for the proposed attorneys' fees and costs, (5) approved the
3

Class Notice, and (6) approved a schedule for the final settlement approval process. See Order, Oct. 19, 2012 [Dkt. #148]. Notices were subsequently mailed to over 6,000 potential class members.
Pursuant to Federal Rule of Civil Procedure 23(e), the Court held a fairness hearing to consider objections to the Agreement and whether to grant final approval. Due notice of the hearing was provided to all potential class members, and all entities that made timely objections were given an opportunity to present such objections to the Court and to be heard at the Fairness Hearing held on January 30, 2013. Two additional hearing days (February 15 and March 1, 2013) were devoted to objections to the injunctive and monetary relief proposed in the Agreement. A fourth hearing day, May 7, 2013, was devoted to the proposed attorneys' fees and costs.
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 23(e), final approval of the proposed settlement agreement lies within this Court's discretion. See Vista Healthplan v. Warner Holdings Co. III, 246 F.R.D. 349, 357 (D.D.C. 2007). "In considering whether to approve a proposed class action settlement, the Court must strike a balance between a rubber stamp approval and 'the detailed and thorough investigation that it would undertake if it were actually trying the case."' !d. (quoting United States v. District of Columbia, 933 F. Supp. 42,47 (D.D.C. 1996)). The Court's role is to act as a fiduciary for class members and determine whether the proposed settlement is "fair, reasonable, and adequate." FED. R. CIV. P. 23(e)(2). Courts in our Circuit have considered the
4

following factors in making this determination: "(1) whether the settlement is the result of arm's-length negotiations; (2) the terms of the settlement in relation to the strength of Plaintiffs' case; (3) the stage of the litigation proceedings at the time of settlement; (4) the reaction of the class; and (5) the opinion of experienced counsel." Vista Healthplan, 246 F.R.D. at 360; see also In re Lorazepam & Clorazepate Antitrust Litig., No. MDL 1290 (TFH), 2003 WL 22037741, *2 (D.D.C. June 16, 2003) ("Lorazepam Iff') (citing numerous cases).
While Rule 23 (e) does not expressly address judicial oversight of fee accords, "the [district court's] approval function has routinely been extended to embrace fees ... where ... there is an inherent tension between the interests of the class and the interests of the lawyers." See Weinberger v. Great N Nekoosa Corp., 925 F.2d 518, 523 (1st Cir. 1991); Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980) (to minimize conflict between attorney and class, district court "must address the issue of attorneys' fees" before approving class action settlement). "The presence of an arms' length negotiated agreement among the parties weighs strongly in favor of approval, but such an agreement is not binding on the court." Jones v. Amalgamated Warbasse Houses, Inc., 721 F.2d 881, 884 (2d Cir. 1983) (upholding district court's downward revision of fee settlement in class action civil rights suit submitted to court for Rule 23(e) approval). "The court's role as the guarantor of fairness obligates it not to accept uncritically what lawyers selfservingly suggest is reasonable compensation for their services." Weinberger, 925 F.2d at 525.
5

I. Class Certification

ANALYSIS

As a preliminary matter, the Court will certify the Proposed Settlement Classes based on its finding that the classes satisfy the prerequisites ofFederal Rule of Civil Procedure 23(a) with respect to numerosity, commonality, typicality, and adequacy, as well as the prerequisites of23(b)(2) and (b)(3). The Damages Settlement Class is certified as a Rule 23(b)(3) opt-out class comprised as stated in the Court's October 19, 2012 Order. The Injunctive Settlement Class is certified as a Rule 23(b)(2) non-opt-out class comprised as stated in the same order.
"A settlement class certification must comply with all four prerequisites of Rule 23(a) and one of the three subsections of Rule 23(b)." In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 387 (D.D.C. 2002) ("Lorazepam If'). Here, the numerosity requirement under 23(a)(1) is easily satisfied for both classes by the undisputed fact that USPS employed over 6,000 deaf or hearing-impaired individuals between November 14, 2001 and the present, and joinder of all members would be impracticable. The commonality requirement under 23(a)(2) is satisfied for both classes because the claims are based on the common contention that USPS has failed to provide reasonable accommodations to deaf and hearing-impaired employees from November 14, 200 1 to the present. The resolution of this issue will affect all of the members of the classes. See In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 26 (D.D.C. 2001) ("Lorazepam f'). The typicality requirement under 23(a)(3) is satisfied here

6

because the claims of the Class Representatives are based on the same course of conduct giving rise to the claims of the Proposed Settlement Classes. See Bynum v. District of Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003). The adequacy requirement under 23(a)(4) is satisfied here because the Class Representatives and Class Counsel adequately represented the absent class members and there is no conflict between the interests of the Class Representatives and the Proposed Settlement Classes.
As noted above, plaintiffs seek to certify the Damages Settlement Class under Rule 23(b)(3) and the Injunctive Settlement Class under Rule 23(b)(2). The Court concludes that certification ofthe Damages Settlement Class under 23(b)(3) is appropriate. The predominance requirement under 23(b)(3) is satisfied because the predominant issue in the case-the question ofUSPS' denial of accommodations in violation of the Rehabilitation Act-"pertain[s] to each member of the class." See Radosti v. Envision EM!, L.L.C., 717 F. Supp. 2d 37, 53 (D.D.C. 2010) ("Radosti F'). The superiority requirement under 23(b)(3) is also met here because the small individual stakes involved make the class action a superior mechanism to effect a nationwide change in USPS policies and "ensure[] that class members will receive equal treatment." See id. Certification of the Injunctive Settlement Class is appropriate under Rule 23(b)(2) because the injunctive and declaratory relief in the Agreement "is appropriate respecting the class as a whole," FED. R. CIV. P. 23(b)(2), to address the class-based discrimination alleged by plaintiffs, see Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997).
7

II. Reasonableness of the Settlement
Having found that the classes should be certified, the Court now turns to consider the reasonableness of the settlement to determine if it should be approved. For the reasons explained below, the Court considers the separate funds for class recovery and attorneys' fees collectively as a "constructive common fund," valued at $4,550,000. The Court awards 20% ofthis fund, or $910,000, to Class Counsel as attorneys' fees. The Court also awards $114,216.69 in expenses to Class Counsel. This leaves $3,525,783.31 in monetary relief for distribution to the Class Representatives, class members, and claims administration costs.
The Court finds this recovery to be fair, adequate, and reasonable under Federal Rule of Civil Procedure 23(e) and the factors set forth in Vista Healthplan. The settlement was reached in arm's length negotiations undertaken in good faith between experienced counsel after extensive discovery, factual investigation, and legal analysis. There is no evidence of unfairness or collusion that would preclude final approval. Class counsel had more than "sufficient information, through adequate discovery, to reasonably assess the risks of litigation vis-a-vis the probability of success and range of recovery." See Lorazepam III, 2003 WL 22037741, at *4. These factors weigh in favor of approval.
a. The Injunctive Reliefand Compensatory Damages Are Fair, Reasonable, and Adequate
The Agreement provides for injunctive relief, including state-of-the-art technology and improved management structures designed to enable all deaf and hearing-impaired USPS employees to fully and safely participate in the workplace. See Pls.' Memo in
8

Support of Unopposed Mot. at 5-9. The Agreement requires USPS to make available American Sign Language ("ASL") interpreting services for important workplace communications including hiring, promotion, discipline, and safety discussions. ld. at 6. USPS will train supervisors on the new requirements and technology. ld. at 7. It will also create various internal management structures to monitor the provision of reasonable accommodations. ld. at 8-9. An independent ombudsman will also monitor compliance and enforcement of the Agreement. Id. at 9.
The Agreement also provides monetary relief to compensate eligible damages class members. Each Class Representative is entitled to a baseline award of $10,000 for his or her work on behalf of the class, and each eligible damages class member is entitled to a baseline award of $250. See Jt. Memorandum Providing Factual and Legal Support for Preliminary Approval of Global Settlement Agreement ("Jt. Memo") [Dkt. # 142-1] at 5. All remaining funds (less claims administration costs) will be allocated to eligible class members based on the severity of the harm they allegedly suffered as a result of USPS' failure to provide reasonable accommodations. Id. at 6. The parties estimated that half of the approximately 6,000 eligible class members will submit a claim, and the average award will be $927. !d. at 7. The Court notes that this estimate is less than damages awards in EEOC actions, discrimination suits, and settlements based on similar allegations. See id. at 8-10. However, the Court's order today makes over $500,000 previously earmarked by the parties for attorneys' fees and expenses available for distribution to the class members. In addition, continued litigation in this case would
9

entail substantial costs and risks given USPS' continued denial of liability. On balance, the Court concludes that a total recovery for the class of$3,525,783.31 (less claims administration costs) is fair, adequate, and reasonable.
The Court also finds reasonable the $110,000 in claims administration costs provided for in the Agreement. First, these costs arose from a good-faith, competitive negotiation process. The parties considered proposals from two different claims administration firms and ultimately negotiated an absolute cap on administration costs of $110,000 with one ofthem. !d. at 25-26. Second, this figure is consistent with the costs in other class action settlements approved by our Circuit. !d. at 26. Third, these costs are fair, adequate, and reasonable given the unique communication needs of the class. !d.
Under Rule 23, "the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." FED. R. Crv. P. 23(c)(2)(B). In this case, the Class Notice was nationally disseminated to over 6,000 eligible damages class members (current and former hearing-impaired individuals who were USPS employees at some point after November 14, 2001) in November 2012. The Notice-which was provided in both sign language and writing-advised the members of the Proposed Settlement Classes of the essential terms of the Agreement, the plan for allocating funds, how to make a claim, and how to object to the settlement. See Pis.' Memo in Support of Unopposed Mot. at 19. The Classes were also notified regarding the date, time, and place of the Fairness Hearing. !d. Having carefully examined the Notice and distribution
10

procedures outlined in Section 7.1 of the Agreement, the Court has no difficulty finding that the Notice was adequate.
The Court finds that the class members' reaction to this settlement has been positive and supports approval. Prior to the Fairness Hearing held on January 30, 2013, the Claims Administrator received 1,296 claim forms, 1 eleven requests for exclusion from the settlement, and nine submissions from class members? See Jt. Response to Class Member Submissions Received to Date, Jan. 25, 2013 [Dkt. #152]. Compared to 6,000 notices disseminated to potential class members, "[t]he low number of opt outs and objectors (or purported objectors) supports the conclusion that the terms of the settlement were viewed favorably by the overwhelming majority of class members." See Bynum v. District ofColumbia, 412 F. Supp. 2d. 73, 77 (D.D.C. 2006). In addition to reviewing these written submissions, the Court heard from five potential class members at the Fairness Hearing on January 30, 2013, namely: Timothy Ryan, Joseph Ortiz, Brian Bush, Marie Ryan, and Rastan Yazdani. Mr. and Mrs. Ryan, Mr. Ortiz, and Mr. Bush also appeared and spoke at the Fairness Hearing on February 15, 2013.
The Court overrules the objection submitted by Brian Bush. In his written submission, Mr. Bush challenged the $10,000 compensation for the Class Representatives. I conclude, however, that the Class Representatives are entitled to
1 As of April25, 2013, the Claims Administrator had received 1,495 claim forms, which represents 24% ofthe 6,159 class members. See Ex. A to Pis.' Supp. Br. [Dkt. #165-1]. 2 The Court received nine submissions from Jennifer Burks, Brian Bush, James Doolittle, Omar Chung, George Ciobanu, Arthur Gerada, Joseph Ortiz, Marie Ryan, and Timothy Ryan. The Court construes the submissions of Mr. Doolittle and Mr. Ortiz as requests to opt-out of the settlement pursuant to section 6.1.3 of the Agreement.
11

$10,000 each "for the services they provided and the risks they incurred during the course of the class action litigation." Radosti v. Envision EML L.L.C., 760 F. Supp. 2d 73, 79 (D.D.C. 2011) ("Radosti IF'). The eleven Class Representatives in this action spent hours working on behalf of absent class members and made valuable contributions to both classes. In addition, the amount of this award is reasonable compared to awards in other cases.
The Court also overrules the purported objections of Marie Ryan, Timothy Ryan, Jennifer Burks, Omar Chung, George Ciobanu, and Arthur Gerada. In their written submissions, Mr. and Mrs. Ryan expressed concerns about the provision of interpreter services during significant workplace events and problems with the Video Remote Interpreting technology. They also spoke about these concerns at the Fairness Hearing. While they did not appear at the Fairness Hearing, Jennifer Burks, Omar Chung, George Ciobanu, and Arthur Gerada expressed in writing similar concerns and frustration about past discrimination. The Court is confident that these concerns will be addressed when USPS implements the remedial aspects of the Agreement. In addition, the individuals who expressed frustration about past discrimination will be eligible for monetary awards under the Agreement.
Having scrutinized the terms of the Agreement, all papers filed in connection therewith, and the oral presentations of counsel and objectors at the Fairness Hearing, I find the injunctive and monetary relief to be in the best interests of the class and to be fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e).
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b. Attorneys' Fees and Expenses As part of the Agreement, the parties negotiated a lump sum payment by USPS of $1,550,000 for fees and expenses to be allocated among Class Counsel. This amount was comprised of $1,360,783.31 in attorneys' fees and $189,216.69 in expenses. See Jt. Memo at 14. The $1,360,783.31 attorneys' fee component was comprised of $971,110.48 for Covington, $125,000 for the Washington Lawyer's Committee ("WLC"), $124,672.83 for a Maryland law firm-McCollum & Associates LLC ("McCollum"), and $140,000 for a Denver law firm-the Law Offices of Kevin C. Flesch LLP ("Flesch"). !d. at 15. The $189,216.69 expenses component was composed of$188,889.52 for Covington and $327.17 for McCollum. !d.
i. Attorneys' Fees "When awarding attorneys' fees, federal courts have a duty to ensure that claims for attorneys' fees are reasonable." Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993). Courts generally use two methods to assess the reasonableness of attorneys' fees: the lodestar method and the percentage of recovery method. See In re Vitamins Antitrust Litig., Misc. Action No. 99-197 (TFH), 2001 WL 34312839, at *2-*3 (D.D.C. July 16, 2001) ("Vitamins"). The lodestar method is typically utilized in the statutory fee shifting framework, whereas the percentage of recovery method is employed where the efforts of counsel have generated a common fund. See id. "[T]his Circuit requires the percentage of recovery method in common fund cases." !d. at *2. Under the lodestar method, the district court must start by determining the amount
13

of time reasonably expended by class counsel, and compensate that time at appropriate hourly rates based on the geographic region and the attorneys' experience level. See Miller v. Holzman, 575 F. Supp. 2d 2, 11-12 (D.D.C. 2008), vacated in part on separate grounds by United States ex ref. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871 (D.C. Cir. 2010). The product of reasonable hours times a reasonable rate-the "lodestar figure"-is presumed to be the reasonable fee to which counsel is entitled. !d. at 11. Courts in our Circuit have reduced the lodestar, however, in cases where counsel's calculations are based on ambiguous time entries, block billing, and inefficient staffing. See, e.g., Miller, 575 F. Supp. 2d at 44.
Our Circuit has joined the Third and Eleventh Circuits, among others, in concluding that the percentage of recovery method is superior to the lodestar method for determining attorneys' fee awards in common fund cases. See Swedish Hosp., 1 F.3d at 1271. The common fund doctrine is based on the equitable notion that "a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole." Boeing Co. v. Van Gernert, 444 U.S. 472, 478 (1980). As our Circuit has explained, "[s]pecial problems exist in assessing the reasonableness of fees in [common fund cases] since class members with low individual stakes in the outcome often do not file objections, and the defendant who contributed [to] the fund will usually have no interest in how the fund is divided between the plaintiffs and class counsel." Swedish Hosp., 1 F.3d at 1265. By contrast, "statutory fee cases involve the plaintiff (not his attorney) as claimant and continue to be adversary proceedings." See Skelton v. General Motors, 860 F.2d 250,
14

253 (7th Cir. 1989). In the common fund context, the percentage of recovery method does a better job of guarding against potential abuses than the lodestar method. See Swedish Hasp., 1 F.3d at 1269 ("[I]fwe apply the lodestar method to the common fund case, then the attorney inefficiently expending an excess amount of time does stand to gain by that inefficiency if the awarding court does not ultimately recognize the inefficiency in the far-from-exact testing of the fee award hearing."); Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 246-49 (1986) (noting that the lodestar method incentivizes attorney inefficiency and disincentivizes early settlement in common fund cases). In addition, the percentage of recovery method is "more efficient, easier to administer, and more closely reflects the marketplace." See Swedish Hasp., 1 F.3d at 1270.
This, of course, is not a classic common fund case. Class counsel and DOJ, on behalf of USPS, negotiated a separate fee accord to be paid by USPS. For all practical purposes, however, the attorneys' fees and class recovery in this case come from the same source-USPS revenues. See Jt. Memo at 4. Here, USPS, "unlike the loser in a fee-shifting case, stands to lose no more if the attorneys' fee award is greater and therefore cannot be relied upon to provide an adversarial approach to deleting unreasonable time entries." See Swedish Hasp., 1 F.3d at 1269. In order to guard against potential abuses and ensure fairness to the class members in this situation, other judges on this Court "ha[ve] previously considered similar settlement agreements as constructive common funds and awarded fees on a percentage basis." See Radosti II, 760 F. Supp. 2d at 77 (Kollar-Kotelly, J.); Vista Healthplan, 246 F.R.D. at 364 (Kollar-Kotelly, J.); Cohen
15

v. Chilcott, 522 F. Supp. 2d 105, 122 (D.D.C. 2007) (Kollar-Kotelly, J.); Vitamins, 2001 WL 34312839, at *6 (Hogan, C.J.). Accordingly, this Court will similarly consider this settlement to be a constructive common fund of $4,550,000, and the Court will apply the percentage of recovery method to determine an appropriate fee award.
Class Counsel here seeks an award of$1,360,783.31 in fees, which amounts to just under 30% of the constructive common fund. See Jt. Memo at 22. In the absence of any definitive test in our Circuit for determining the appropriate percentage under the percentage of recovery method, my colleague, Judge Thomas F. Hogan, adopted and applied the following factors from the Third Circuit:
(1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency ofthe attorneys involved; (4) the complexity and duration ofthe litigation; (5) the risk of nonpayment; (6) the amount oftime devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases.
Lorazepam III, 2003 WL 22037741, at *8 (quotations and citations omitted). In applying these factors here, the most significant are the efficiency of the attorneys involved, the complexity of the litigation, the risk of nonpayment, and the size of the fund. While the Court recognizes, and appreciates, that Class Counsel worked for over 10 years before reaching an agreement that provides a reasonable and adequate recovery to the class members, I am quite concerned that more than two dozen lawyers at three law firms and a public interest organization billed over 9,000 hours to this case. See Jt. Memo at 14. I am even more concerned that many of the billing records submitted to the Court contain
16

vague work descriptions from which the Court cannot ascertain the reasonableness of the time claimed. Eleven attorneys at one firm alone-Covington-billed over 6,500 hours. See Decl. of Thomas S. Williamson, Jr. [Dkt. #165-1] ~~ 4, 11. On balance, the Court finds that Class Counsel, particularly those at Covington, could have performed their duties much more efficiently, with leaner staffing and better team management and coordination. Indeed, this is a classic example of a case where "too many attorneys [from too many firms] were assigned to discrete tasks," including multiple depositions where three or more attorneys billed time. See Miller, 575 F. Supp. 2d at 40-41. Moreover, the 9,000 hours spent litigating this matter were, to say the least, excessively disproportionate to the legal complexity of the case. Only fifteen depositions (thirteen fact witnesses and one expert witness twice) were defended or taken by Class Counsel, and USPS filed only two dispositive motions. See Ex. 7 to Decl. of Thomas S. Williamson, Jr. [Dkt. #165-1]. Furthermore, during the six years that this case was actively litigated, there were only a handful of brief hearings in the District Court and another handful before the Magistrate Judge assisting the Court with discovery issues. "[T]he obvious lack of any market restraints on the amount of time spent causes the Court to be highly skeptical of counsel's claim that the number of hours is reasonable." See In re LivingSocial Mktg. & Sales Practice Litig., 2013 WL 1181489, at *19 (D.D.C. Mar. 22, 2013). As to the risk of nonpayment factor, while the two smaller law firms that assisted Covington in the handling of this case did so on a contingency basis, Covington handled it on a purely pro bono basis and has assured the Court that it will donate all of the fees it recovers (less out-of-pocket expenses) to either public interest or legal services organizations. See
17

Decl. Thomas S. Williamson, Jr.~ 3. Finally, the minimum guaranteed and estimated average monetary awards in this case fall short of those in other settlements based on similar allegations. See Jt. Memo at 10. In sum, this is a relatively small common fund from which to award nearly 30% to attorneys' fees. In Bates v. United States Parcel Service, Case No. C 99-2216 TEH (N.D. Cal.), for example, "[c]lass members who did not participate in the litigation were due a minimum of $500-as compared to $250 in this case." See Jt. Memo at 10.
Accordingly, I have concluded that the Lorazepram III factors weigh in favor of a more modest percentage award of20% of the $4.55 million common fund, or $910,000, to Class Counsel for attorneys' fees. This percentage falls comfortably within the range of fifteen to forty- five percent that has been established in other cases in our Circuit, and it is a more reasonable and fair award than that proposed by Class Counsel. See Vitamins, 2001 WL 34312839, at *10; see also Swedish Hasp., 1 F.3d at 1272 ("[A] majority of common fund class action fee awards fall between twenty and thirty percent.").
ii. Expenses "In addition to being entitled to reasonable attorneys' fees, class counsel in common fund cases are also entitled to reasonable litigation expenses from that fund." Lorazepam III, 2003 WL 22037741, at *10 (quotations and citations omitted). Here, Class Counsel seeks reimbursement for $189,216.69 in expenses incurred during the litigation. See Jt. Memo at 14. This amount is comprised of $188,889.52 in expenses
18

incurred by Covington and $327.17 in expenses incurred by McCollum. !d. at 15. Part of the expenses sought here is Covington's half of the $150,000 flat success
fee that Covington and DOJ committed to pay Ken Feinberg's law firm for its mediation services in the event that a final settlement were reached and approved by this Court. Such a fee might be appropriate, of course, in a highly complex case between two (or at least one) highly financed corporations, where there is a very large common fund for the settlement. It is not, however, appropriate in a much less complex case against a financially strapped organization like USPS, where there is a very modest common fund. Indeed, counsel for DOJ and Covington acknowledged during the Court's hearing on this issue that they made very limited to no efforts to find a more cost-effective mediation arrangement after the Court's pro bono mediator was not successful. Thus, while Mr. Feinberg may well be regarded as the gold standard in resolving highly complex matters involving very large pools of money (see, e.g., BP Oil Spill Fund, September 11th Victim Compensation Fund, Bowling v. Pfizer Heart Valve Settlement) his flat fee demand in this case strikes this Court as unreasonable under these circumstances. Accordingly, the Court will not approve the $75,000 portion of his fee that Covington seeks as expenses. If Covington, however, wishes to pay Mr. Feinberg from its portion ofthe attorneys' fees the Court has awarded Class Counsel, that is a matter between Covington and Mr. Feinberg. In the meantime, the $75,000 Covington seeks will remain in the common fund for distribution to the class members.
Otherwise, the Court is satisfied that Class Counsel reasonably expended the
19

remaining fees claimed in the course of their work on behalf of the classes. To date, no class members have objected to the award of expenses, and the award is not opposed by USPS. Accordingly, the Court will award the remaining $114,216.69 in expenses to Class Counsel.
CONCLUSION For all of the foregoing reasons, the Court grants final approval of the Agreement under Federal Rule of Civil Procedure 23(e). An Order consistent with this decision accompanies this Memorandum Opinion.
20

 
 Case 1:03-cv-01062-RJL Document 168 Filed 07/31/13 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRUCE HUBBARD, et al., Plaintiffs,
v.
PATRICK R. DONAHOE, Postmaster General, United States Postal Service,
Defendant.

) ) ) ) ) Civil Case No. 03-1062 (RJL) ) ) ) ) )

ORDEi-f'
(July ~' 2013)
WHEREAS the parties have entered into a Global Settlement Agreement
("Agreement")\ signed by all parties and filed with the Court on October 24, 2011, [Dkt.
# 140-2]; and

WHEREAS, the Court entered an Order dated October 19, 2012, [Dkt. #148], conditionally certifying the Proposed Settlement Classes, appointing the Class Representatives and Class Counsel, approving the Class Notice, granting preliminary approval of the Agreement, and scheduling a Fairness Hearing (the "Preliminary Approval Order"); and

WHEREAS, the Court held a Fairness Hearing, over multiple days, to determine
whether to grant final approval of the Agreement.
1 The term "Agreement" shall at all times refer to the Global Settlement Agreement. Except where otherwise noted, all capitalized terms used in this Order and the accompanying Memorandum Opinion shall have the same definitions as in the Agreement.

Case 1:03-cv-01062-RJL Document 168 Filed 07/31/13 Page 2 of 4
NOW THEREFORE, for the reasons stated in the accompanying Memorandum
~
Opinion, it is, thi;3f day of July, 2013, hereby ORDERED as follows: 1. Final Class Certification. The Proposed Settlement Classes that the Court
conditionally certified in its Preliminary Approval Order are hereby finally certified for settlement purposes under Fed. R. Civ. P. 23(b)(2) and (3). The Damages Settlement Class and Injunctive Settlement Class are comprised as stated in the Preliminary Approval Order.
2. Adequacy of Representation. The Court fully and finally confirms the appointment of the Class Representatives and Class Counsel as stated in its Preliminary Approval Order. The Court finds that the Class Representatives and Class Counsel have fully and adequately represented the Proposed Settlement Classes for purposes of entering into and implementing the Agreement and have satisfied the requirements of Fed. R. Civ. P. 23(a)(4).
3. Class Notice. The Court finds that the Class Notice, in accordance with the terms of the Agreement and this Court's Preliminary Approval Order, constituted the best practicable notice to Class Members under the circumstances of this Action; was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of this action, their right to request exclusion, their right to object to any aspect of the proposed settlement, and their right to appear at the Fairness Hearing; was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to such notice; and fully satisfied the requirements of the Federal Rules of Civil Procedure,
2

Case 1:03-cv-01062-RJL Document 168 Filed 07/31/13 Page 3 of 4
the United States Constitution, the Rules of this Court, and any other applicable laws. 4. Final Settlement Approval. The terms and provisions of the Agreement,
except the provisions relating to attorneys' fees and expenses, are fully and finally approved as fair, reasonable, and adequate as to, and in the best interests of, the Plaintiffs and the Class Members, and in full compliance with all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law. The Court overrules all Class Members' objections and approves the Agreement, except the provisions relating to attorneys' fees and expenses, as fair, adequate, and reasonable. The Parties and Class Members are hereby directed to implement and consummate the Settlement Agreement, except as this Order specifies as to attorneys' fees and expenses.
5. Class Representatives' Fees. The Court approves payments to the eleven Class Representatives of $10,000 each.
6. Attorneys' Fees and Expenses. The Court awards $910,000 in attorneys' fees and $114,216.69 in expenses to Class Counsel.
7. Retention of Jurisdiction. Without affecting the finality of this Final Order and Judgment, this Court expressly retains exclusive and continuing jurisdiction over the Parties, including the Settlement Classes, and all matters relating to the administration, consummation, validity, enforcement, and interpretation of the Agreement and this Final Order and Judgment.
8. No Admissions. Neither this Final Order and Judgment nor the Agreement
3

Case 1:03-cv-01062-RJL Document 168 Filed 07/31/13 Page 4 of 4 is an admission or concession by or against defendant as to the validity of any claim or any actual or potential fault, wrongdoing, or liability whatsoever.
9. Dismissal of Action. This Action, including all individual and class claims, is hereby dismissed on the merits and with prejudice against plaintiffs and all other class members.
10. Final Judgment. This is a Final Judgment disposing of all claims and all parties.
SO ORDERED.
United States District Judge
4

 
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EXHIBIT 2

Case 1:03-cv-01062-RJL Document 138-2 Filed 10/21/11 Page 2 of 180 EXHIBIT 2
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

BRUCE C. HUBBARD, JAMES

)

GRALUND, JUDY M.

)

SCHULD, GRACE J. SHIRK-

)

EMMONS, LUCY I. STIEGLITZ,

)

GEORGE R. WESTENBERGER,

)

DANIEL TIGHE, SUSAN TIGHE,

)

GEORGE WESTENBERGER, DIANE )

WHITENER, ARLEN WHITSIT,

)

and GAIL WALKER

)

individually and on behalf of a class )

of persons similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PATRICK R. DONAHOE,

)

POSTMASTER GENERAL,

)

UNITED STATES

)

POSTAL SERVICE,

)

)

Defendant.

)

)

Civil Action No. 03-1062 (RJL/JMF)

GLOBAL SETTLEMENT AGREEMENT

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1. INTRODUCTION
This settlement agreement (Global Settlement Agreement) is entered into by, Bruce C. Hubbard (Hubbard), James Gralund (Gralund), Judy M. Schuld (Schuld), Grace J. Shirk-Emmons (Emmons) , Lucy I. Stieglitz (Stieglitz), Daniel Tighe (D. Tighe), Susan Tighe (S. Tighe), George R. Westenberger (Westenberger), Diane Whitener (Whitener), Arlen Whitsit (Whitsit) and Gail Walker (Walker) as the settlement class agents (the “Class Representatives”), and the United States Postal Service (“Postal Service” or “USPS”) (collectively, the “Parties”). This Global Settlement Agreement resolves all claims asserted by Hubbard, Gralund, Schuld, Emmons, Stieglitz, D. Tighe, S. Tighe, Westenberger, Whitener, Whitsit, and Walker, individually and on behalf of all other persons similarly situated in two separate disability discrimination class action cases: (1) a federal court class action captioned as Bruce C. Hubbard, et al., v. Patrick R. Donahoe, PMG, Civil Action No. 03-1062 (RJL/JMF) (D.D.C) (Hubbard Class Action); and (2) an Equal Employment Opportunity Commission (EEOC) administrative class action captioned as Daniel Tighe v. Patrick R. Donahoe, PMG, EEOC No. 320-2005-00065X; Agency No. 1E-801-0070-04 (Tighe Class Action). In the interest of resolving the issues between the Parties presented in the Hubbard and the Tighe Class Actions without the expense, delay, and inconvenience of further litigation of the issues raised in these two actions; in reliance upon the representations, mutual promises, covenants, and obligations set out in this Global Settlement Agreement; for good and valuable consideration also set out in this Global Settlement Agreement; and subject to Rule 60(b) of the Federal Rules of Civil Procedure, the Parties, through their undersigned counsel of record, hereby stipulate and agree as follows:
2. DEFINITIONS
Unless otherwise noted, the following terms used in this Global Settlement Agreement shall have the meanings defined below:
2.1.1 “ADRIA”
Alternative Dispute Resolution Inclusiveness Analyst as defined and discussed in greater detail in Section 9.9 of this Global Settlement Agreement.
2.1.2 “Agreement in Principle”
Written agreement entered into on November 10, 2010, between the Postal Service, the Hubbard Plaintiffs, the Tighe Plaintiffs and the respective classes they represent. The terms of the Agreement in Principle are incorporated into this Global Settlement Agreement. Both the Global Settlement Agreement and the Agreement in Principle resolve fully and finally all issues and claims in the Hubbard Class Action and the Tighe Class Action.
1

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legible postmark, if it is received by mail within five (5) days of the expiration of the applicable period.
11.8.3 Calculation of . Time
The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday, or Federal holiday, in which case the period shall be extended to include the next business day.
12. MODIFICATIONS OF THE PROCESS BY AGREEMENT
The Parties may modify, by joint written agreement, the sequences and timing of the notice and payment processes to the Eligible Class Members outlined in Sections 7 and 8 above, to effectively deal with issues that may arise under this Global Settlement Agreement (i.e., unforeseen circumstances, etc.).
13. SIGNATURE PAGES

SO AGREED: For the Class:

C 61i4CeF
Bruce CC.. Hubbard, Class Representative

Date:

t [ 130it i i

Judy M. Schuld, Class Representative Date:

Grace J. Shirk-Emmons, Class Representative
Date:

For the LISPS:
RONALD C. MACHEN JR, United States Attorney for the District of Columbia
RUDOLPH CONTRERAS Chief, Civil Division
By:
BEVERLY M. RUSSELL D.C. Bar No, 454257
MICHELE LO Assistant United States Attorneys U.S. Attorney's Office for the District of Columbia, Civil Division 555 4th Street, N.W. Washington, D.C. 20530
Date:

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Oct 13 1C1as1e01::5043p-cv-010R6o2n-RJL Document 138-2 Filed 107/1271/18152P4a8g3e562 of 180 p.1

Lucy I. Stieglitz, Class Representative Date:
1L-
Geor R. VUestenberger, Class Representative
Date: ./V— /:,3 -770)//
Daniel Tighe, Class Representative Date:
Susan Tighe, Class Representative Date:
James Gralund, Class Representative Date:
Diane Whitener, Class Representative Date:

David B. Ellis, Esq., LISPS, Chief Counsel Date:
Kathryn A. Good, Esq .
Date:

49

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mental anguish, and other nonpecuniary losses that Plaintiffs suffered because of the USPS’s failure to reasonably accommodate them; and (ix) Grant Plaintiffs reasonable attorneys’ fees, costs, and litigation expenses, and such other relief as may be just and equitable. X. Jury Demand Plaintiffs demand trial by jury on all issues so triable.
Respectfully submitted,

October 21, 2011

/s/ Thomas S. Williamson, Jr. Thomas S. Williamson, Jr. #217729 Christopher M. Denig #457187 Covington & Burling LLP 1201 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 662-6000
Elaine Gardner #271262 Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 (202) 319-1000
James E. McCollum, Jr. #398117 McCollum & Associates, LLC P.O. Box 1717 Suite 117 College Park, MD 20741 (301) 864-6070
Kevin C. Flesch Law Office of Kevin C. Flesch, LLC 333 W. Hampden Avenue, Suite 710 Englewood, CO 80110
Attorneys for Plaintiffs

37

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EXHIBIT 2

Exhibit 2
Amended Hubbard Class Action – Global Settlement Agreement
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND FAIRNESS HEARING
THIS NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND FAIRNESS HEARING HAS BEEN TRANSLATED INTO AMERICAN SIGN LANGUAGE (ASL)
AND IS AVAILABLE AT WWW.HUBBARDSETTLEMENT.COM
If You Are Deaf or Hard of Hearing and Were A Postal Employee On or After November 14, 2001,
You Could Receive Benefits from a Class Action Settlement.
A federal court authorized this Notice. This is not a solicitation from a lawyer.
● A $4,550,000 settlement with the United States Postal Service (Postal Service) has been reached in connection with the following two proceedings:
1. A federal court class action captioned as Bruce C. Hubbard, et al. v. Patrick R. Donahoe, PMG, Civil Action No 03-1062 (RJL/MJF) (D.D.C.) (Hubbard Class Action); and
2. An Equal Employment Opportunity Commission (EEOC) administrative class action captioned as Daniel Tighe, et al. v. Patrick R. Donahoe, PMG, EEOC No. 320-200500065X; Agency No. 1E-801-0070-04 (Tighe Class Action).
In these two separate actions, Bruce C. Hubbard (Hubbard), Judy M. Schuld (Schuld), Grace J. ShirkEmmons (Emmons), Lucy I. Stieglitz (Stieglitz), George R. Westenberger (Westenberger), James Gralund (Gralund), Daniel Tighe (D. Tighe), Susan Tighe (S. Tighe), Diane Whitener (Whitner), Arlen Whitsit (Whitsit), and Gail Walker (Walker) (collectively the “Class Representatives”) claim that between November 14, 2001 and __________, 2011 the Postal Service:
(1) denied them communication accommodations, including interpreters for critical workplace meetings and events; (2) denied them telecommunications devices for the deaf (TTY) for phone communications; (3) denied them emergency evacuation notification systems; (4) subjected them to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or
1 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

Case 1:03-cv-01062-RJL Document 138-2 Filed 10/21/11 Page 109 of 180
(5) denied them promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment.
● The Class Representatives and the Postal Service have reached a Global Settlement Agreement. In connection with the proposed settlement reached by the Class Representatives and the Postal Service (hereinafter the Global Settlement Agreement), the U.S. District Court for the District of Columbia (Court) has granted leave to the Class Representatives to file a Third Amended Complaint on behalf of the Hubbard and the Tighe class members (the Amended Hubbard Class Action). The Court has approved this Notice and authorized the parties to mail the Notice to the all putative class members in the Amended Hubbard Class Action.
● The Global Settlement Agreement creates two separate classes: a “Damages Settlement Class” (for purposes of the monetary relief provided under the settlement) and an “Injunctive Settlement Class” (for purposes of the programmatic relief provided under the settlement). The definitions of these classes overlap and many individuals will be members of both classes. However, there will be some individuals — namely, former employees of the Postal Service —who qualify only for the Damages Settlement Class.
 Under the terms of the Global Settlement Agreement, you may be eligible for a monetary payment of at least two hundred fifty dollars ($250) and likely more if you are Deaf or Hard of Hearing and you were employed by the Postal Service between November 14, 2001 and ______________, 2011.
 The Postal Service also has agreed, under the terms of the Global Settlement Agreement, to adopt various policies and practices intended to improve the means by which the Postal Service provides reasonable communications accommodations to current Deaf and Hard of Hearing employees.
 The Global Settlement Agreement will affect your rights, if approved. It includes a broad release of claims against the Postal Service. Accordingly, you will be precluded from pursuing certain individual claims against the Postal Service unless you take the steps described in this Notice to exclude yourself from the Global Settlement.
 You may object to any aspect of the Global Settlement Agreement to the Court. The Court will hold a hearing (the Fairness Hearing) to consider whether the settlement is fair, reasonable, and adequate, and to decide whether to give final approval to this settlement. If the Global Settlement Agreement is granted final approval by the Court, the Court’s judgment will be final and binding.
2 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

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Your Legal Rights and Options in Connection With the Global Settlement

Submit a Claim Form to the Class Administrator

This is the only way to be eligible to receive money from the Global Settlement.

Exclude Yourself From The Global Settlement

If you are a member of the Damages Settlement Class, you may affirmatively exclude yourself from the provisions of the Global Settlement that provide for monetary relief by sending a letter to the Class Administrator requesting to be excluded. If you affirmatively exclude yourself, you will not receive any money under the Global Settlement. If you do not affirmatively exclude yourself, you will give up the right to file and/or continue to pursue similar claims against the Postal Service for monetary relief.

If you are a member of the Injunctive Settlement Class, you may not affirmatively exclude yourself from the provisions of the Global Settlement that provide for injunctive relief (described in response to Question # 9 below).

Object/Comment

Write to the Court about any concerns you have about the Global Settlement.

Go to The Hearing

Ask to speak in Court about the fairness of the Global Settlement. You must also submit a written objection or
response with the Court to participate in the Fairness
Hearing.

Do Nothing

If you do nothing, you will receive no money from the Global Settlement and you will give up certain rights, such as your ability to file or continue to pursue individual claims against the Postal Service which are similar to the claims in the Amended Hubbard Class Action. However, if you are a current employee, you will still be entitled to the benefits of the injunctive relief.

 These rights and options – and the deadlines to exercise them – are explained in this Notice.
 The Court in charge of this case still has to decide whether to grant final approval of the Global Settlement Agreement. If the Court grants final approval and that determination is not appealed, class members will receive payments upon the completion of a claims process. Please be patient.
3 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

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What This Notice Contains
Basic Information ......................................................................................................... 6
1. Why is there a Notice? 2. What is the Amended Hubbard Class Action about? 3. Why is the Amended Hubbard Class Action being pursued as a class action?
Who Is Covered By The Global Settlement? ........................................................... 6
4. How do I know if I am an Eligible Class Member? 5. Who is considered Deaf or Hard of Hearing? 6. I’m still not sure if I’m included? 7. May I submit more than one claim?
The Global Settlement Benefits ............................................................................... 8
8. What does the Global Settlement provide for the Damages Settlement Class? 9. What else does the Global Settlement provide for the Injunctive Settlement Class? 10. How much money can I get? 11. How will my payment be determined? 12. What will the Class Representatives receive?
How to Get Benefits – Submitting a Claim.............................................................12
13. How do I submit a claim? 14. Can I get help filing a claim? 15. What documentation is required to support my claim? 16. When will I get my payment?
Remaining in the Settlement.....................................................................................13
17. What happens if I do nothing? 18. What am I giving up by submitting a Claim Form and Release Form to obtain monetary relief (i.e., money damages)?
Excluding yourself from the monetary terms of the settlement...................14
19. Am I permitted to exclude myself and sue the Postal Service for the same thing later? 20. How do I exclude myself from the Global Settlement? 21. If I don’t exclude myself, can I sue the Postal Service for the same thing later? 22. If I exclude myself, can I still get benefits from the Global Settlement?
The Lawyers Representing You................................................................................15
23. Do I have a lawyer in this case? 24. How will the lawyers be paid?
4 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

Case 1:03-cv-01062-RJL Document 138-2 Filed 10/21/11 Page 112 of 180 Commenting on the Global Settlement .................................................................16
25. How do I tell the Court what I think about the Global Settlement Agreement? The Court’s Fairness Hearing..................................................................................17
26. When and where will the Court decide whether to approve the Global Settlement Agreement? 27. Do I have to come to the hearing? 28. May I ask permission to speak at the hearing? 29. If the Court grants final approval to the Global Settlement, may I appeal its decision? Getting More Information.........................................................................................18 30. How do I get more information?
5 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

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Basic Information
1. Why is there a Notice?
You have a right to know about the proposed Global Settlement Agreement, and about your options, before the Court decides whether to grant final approval of the Global Settlement Agreement.
The Court in charge of the Amended Hubbard Class Action case is the United States District Court for the District of Columbia, and the Amended Hubbard Class Action is captioned as Bruce C. Hubbard, et al., v. Patrick R. Donahoe, Civil Action No. 03-106. The people who sued are called Plaintiffs, and the person they sued, the Postmaster General in his official role with the Postal Service, is called the Defendant.
2. What is the Amended Hubbard Class Action about?
This Global Settlement resolves all claims asserted in the Amended Hubbard Class Action. In the Amended Hubbard Class Action, the Plaintiffs allege that, between November 14, 2001 and ____________, 2011, the Postal Service: (1) denied them communication accommodations, including interpreters for critical workplace meetings and events; (2) denied them TTY for phone communications; (3) denied them emergency evacuation notification systems; (4) subjected them to a hostile work environment and/or harassment due to their deafness or hearing impairment; and/or (5) denied them promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to their deafness or hearing impairment.
The Global Settlement does not mean the Postal Service violated any laws. The Postal Service denies it did it anything wrong.
3. Why is the Amended Hubbard Class Action being pursued as a class action?
In a class action, one or more people, called class representatives or named plaintiffs (in this case, Bruce C. Hubbard, Judy M. Schuld, Grace J. Shirk-Emmons, Lucy I. Stieglitz, George R. Westenberger, Daniel Tighe, James Gralund, Susan Tighe, Diane Whitener, Arlen Whitsit and Gail Walker) sue on behalf of people who have similar claims. All of these people may make their claims together in a “class” as “class members,” and one court resolves the issues for all class members who have filed a claim.
Who Is Covered By The Global Settlement?
To see if you are entitled to benefits from the Global Settlement Agreement, you first have to determine if you are an eligible class member under the terms of the Global Settlement Agreement. As described above, the Global Settlement Agreement creates two separate classes, including a “Damages Settlement Class” for individuals who are eligible for certain monetary relief (money damages) provided under the settlement (Eligible Damages Class Member) and an “Injunctive Settlement Class” for those individuals who are eligible for certain injunctive or programmatic relief provided under the settlement (Eligible Injunctive Class Member). Many individuals will be members of both classes. However, there will be some individuals — namely, former employees of the Postal Service —who qualify only for the Damages Settlement Class.
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4. How do I know if I am an Eligible Class Member?
You are an Eligible Damages Class Member if it is determined that:  You are Deaf or Hard-of- Hearing (as defined in response to Question #5 below);  You were employed by the Postal Service at any time between November 14, 2001 and ______, 2011; and  During this time period: (1) you were denied reasonable communication accommodations, including interpreters, for critical workplace meetings and events; (2) you were denied TTY for phone communications; (3) you were denied emergency evacuation notification systems; (5) you were denied closed captioning on safety and training videos; (4) you were subjected to a hostile work environment and/or harassment due to your deafness or hearing impairment; and/or (5) you were denied promotional opportunities and/or assistance to pursue promotional opportunities within the Postal Service due to your deafness or hearing impairment.
You are an Eligible Injunctive Class Member if it is determined that you were employed by the Postal Service at any time between November 14, 2001 and ______, 2011, you remain employed by the Postal Service at the time of this Notice, and you are Deaf or Hard-of- Hearing (as defined in response to Question #5 below).
5. Who is considered Deaf and Hard of Hearing?
For purposes of the Global Settlement Agreement, a Deaf employee is a Postal Service employee who meets the definition of Postal Service disability classification code 16 (total deafness with understandable speech) or Postal Service disability classification code 17 (total deafness with inability to speak clearly).
For purposes of the Global Settlement Agreement, a Hard of Hearing employee is a Postal Service employee who meets the definition of Postal Service disability classification code 15 (total deafness in one ear or inability to hear ordinary conversation, correctable with a hearing aid).
6. I’m still not sure if I’m included.
If you are still not sure whether you are included in the Global Settlement Agreement, you can contact Class Counsel at (800) XXX-XXXX?, or you can visit the website www.HubbardSettlement.com, call the Class Administrator at 1 (800) XXX-XXX or send a letter to the Class Administrator at the following address:
[Insert Class Administrator Address]
7. May I submit more than one claim?
No. This Global Settlement resolves all claims contained in the Amended Hubbard Class Action. You can only submit one claim under the terms or the Global Settlement Agreement.
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The Global Settlement Benefits
8. What does the Global Settlement provide for the Damages Settlement Class?
The Postal Service has agreed to provide $4,550,000 to settle the Amended Hubbard Class Action (the Settlement Proceeds) with respect to the Damages Settlement Class. The Settlement Proceeds will be distributed as follows: (1) a class fund of $2,890,000 will be distributed to Eligible Damages Class Members who submit timely, complete Claim Forms (the Class Fund); (2) a reserve in the amount of $110,000 will be allocated to cover costs and expenses of the Class Administrator (the Reserve); and (3) $1,550,000 in attorneys’ fees and costs will be paid to counsel representing the Class Representatives and the class in the Amended Hubbard Class Action (Class Counsel).
If any money remains in the Class Fund or the Reserve after all payments have been made to Eligible Damages Class Members and Class Counsel and all expenses have been paid, such remaining funds, if any, shall be distributed pro-rata to each Eligible Damages Class Member who submitted a timely, completed Claim Form and who provided a valid address.
9. What does the Global Settlement provide for the Injunctive Settlement Class?
The Postal Service has also agreed to adopt various policies and practices intended to enhance the provision of reasonable communication accommodations to Eligible Injunctive Class Members. This type of nonmonetary relief is referred to as injunctive relief. As part of this injunctive relief, the Postal Service will provide certain communications accommodations to Deaf and Hard of Hearing Employees who submit an oral or written request for a communication accommodation to their supervisor, manager or respective District Disability Coordinator.
 Significant Workplace Events. The Postal Service has agreed that it will make best efforts to provide an in-person sign language interpreter, for Deaf and Hard of Hearing Employees who use ASL or another sign language equivalent as their primary means of communication for the following six workplace events: (1) during critical elements of the selection process including interviews and instructions for testing; (2) during formal training sessions; 3) during investigatory interviews that may lead to discipline and formal discussions with a supervisor on job performance evaluations or corrective actions; (4) during Combined Federal Campaign and savings bond drive kickoff meetings; (5), during limited Equal Employment Opportunity counseling sessions and for completion of paperwork for Office of Workers Compensation claims; and (6) during significant safety instruction, other than safety reminders. In the event that an interpreter is not available for one of these events, the Postal Service will reschedule the event for the employee with an interpreter or use Video Remote Interpreting (VRI) or another alternative communication accommodation. As a part of its best efforts obligation, the Postal Service shall ensure that every installation with one or more Deaf or Hard of Hearing Employees who use ASL or another sign language equivalent as their primary means of communication has either contracted with an Interpreter service for the provision of on-site interpretation for Presumed Workplace Events or, if a formal contract is not required, has otherwise made arrangements for an Interpreter service to provide on-site interpretation for the above workplace events. The presumption that an Interpreter will be provided for a Presumed Workplace Event may be overcome if the Postal Service can demonstrate that the Postal Service has undertaken
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diligent and timely efforts to obtain an Interpreter, including contracting with a local Interpreter service, but that no Interpreter is available due to the timing of the Presumed Workplace Event and/or the location of the installation at which the Presumed Workplace Event is to occur.
 Provision of Communication Accommodations for Other Workplace Events. The Postal Service has agreed that it will also provide communication accommodations to Deaf and Hard of Hearing Employees who use ASL or another sign language equivalent as their primary means of communication for the following workplace events: service talks of a duration in excess of five minutes; weekly safety talks; meetings to discuss work procedures, policies, assignments, or health benefit options and retirement issues; management initiated personnel actions; and specialized staff meetings for such employees. The possible reasonable communication accommodations for these events include the following, in descending order of priority: VRI, an in-person interpreter (only if requested and if the VRI is unavailable at the employee’s installation), Ubi Duos or similar devices, or another reasonable communication accommodation, tool and/or technology. For Hard of Hearing Employees (self identified to the Postal Service as Disability Status Code 15) who do not use sign language as their primary means of communication, the Postal Service will make best efforts to provide the following communication accommodations upon request: (1) Ubi Duo; (2) other communication tools or devices; and (3) written communications.
The Postal Service has also agreed to the following measures:
 Contract with Interpreter Service. The Postal Service will ensure that every installation with one or more Deaf or Hard of Hearing Employees has contracted with an interpreter or made other arrangements for an interpreter service to provide on-site interpretation when needed.
 VRI and Video Phones Capabilities. The Postal Service will provide at least one VRI unit or comparable tool at every Postal installation with one or more Deaf or Hard of Hearing Employees that has access to a high speed Internet connection or the Postal Service’s Intranet system. It will also provide at least one video phone at every installation with five or more Deaf or Hard of Hearing Employees who use ASL.
 Training Videos. The Postal Service will ensure that all training or instructional videotapes or films created after the date of the final approval of the Global Settlement Agreement will be open or closed captioned.
 Visual Warning Lights/Industrial Equipment. The Postal Service will ensure that visual warning lights are installed on all moving industrial equipment powered by electric motor or internal combustion motors in all Postal Service facilities employing Deaf or Hard of Hearing Employees in the regular work force.
 Emergency Action Plan and Employee Alarm System. The Postal Service will ensure that it develops and implements an emergency action plan for all its facilities nationally. The plan will address emergency alarm systems which will give Deaf and Hard of Hearing Employee’s adequate warning in the event of an emergency.
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 Improve Training For Supervisors. The USPS will ensure that all supervisors of Deaf or Hard of Hearing Employees obtain training regarding effective communication with Deaf or Hard of Hearing Employees, provision of qualified interpreters, and use of VRI/VRS equipment.
The Postal Service has also agreed to take the following steps designed to ensure that it complies with the terms of this Global Settlement Agreement and its obligation to provide reasonable communications accommodations to Deaf and Hard of Hearing Employees:
 Toll-Free Number or Device. The Postal Service will create a toll-free number or device that will allow Deaf and Hard of Hearing Employees to provide comments or register concerns about communication accommodation issues for a three (3) year period.
 Postal Service Reasonable Accommodation Assistance Center. The Postal Service has created an organizational unit known as the Postal Service Reasonable Accommodation Assistance Center (PRAAC) to monitor compliance with, and enforcement of the Global Settlement Agreement and to ensure that disabled employees, including Deaf and Hard of Hearing Employees, are provided reasonable accommodations.
 District Disability Coordinator. The ad hoc position of District Disability Coordinator will also be established and Deaf and Hard of Hearing Employees can raise concerns and issues about their accommodation(s) with this individual. Further, Disability Coordinators will now be members of the established District Reasonable Accommodation Committees (DRACs) and will work with the DRACs to ensure that a Deaf or Hard of Hearing Employee is receiving the communication accommodations provided for in his or her Communication Accommodation Plan.
 Interactive Discussions with Deaf and Hard of Hearing Employees. The District Disability Coordinators in each District will join the established DRAC in his or her District and will engage in interactive discussions with Deaf and Hard of Hearing Employees to discuss accommodation issues for individual Deaf and Hard of Hearing Employees in each District and to ensure that the Postal Service is in compliance with the provisions of this Global Settlement Agreement.
 The Position of Ombudsman. In addition, an independent Deaf and Hard of Hearing ombudsman (Ombudsman) will be established for a three (3) year period to monitor the Postal Service’s compliance in providing the injunctive relief specified under the terms of the Global Settlement Agreement. The Ombudsman will receive concerns or comments from Deaf or Hard of Hearing Employees concerning issues relating to compliance with the injunctive relief terms of the Global Settlement Agreement and will forward these comments and concerns to the Postal Service for a response and/or resolution. The Ombudsman will also receive quarterly reports regarding the Postal Service’s compliance with the terms of the Global Settlement Agreement for a three (3) year period.
10. How much money can I get?
The precise amount of your actual payment cannot be determined yet. The amount of money you may be eligible to receive will depend in part on the total number of Eligible Damages Class Members who timely
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submit complete Claim Forms and the responses to the Claim Form. If you are an Eligible Damages Class Member, as defined in the response to Question #4 above, and you timely submit a complete Claim Form, you will receive a minimum payment of at least $250. You may then be eligible for additional money depending upon the information contained in your completed Claim Form. The Class Administrator will determine how much money you are entitled to receive based on the information in your completed Claim Form and the distribution formula described in response to Question #11 below.
11. How will my payment be determined?
A Class Administrator retained by Class Counsel will review your Claim Form and determine: (1) whether you are an Eligible Damages Class Member, and if so, (2) how much money you will be entitled to receive from the Class Fund based on the information contained in your Claim Form and the distribution formula set forth below. If the Class Administrator determines that you are an Eligible Damages Class Member, you will be awarded at least $250. This minimum distribution of $250 will be awarded to all Eligible Damages Class Members who submit timely, complete Claim Forms. The remainder of the Class Fund will then be distributed to Eligible Damages Class Members in proportion to the number of shares awarded to each Eligible Damages Class Member by the Class Administrator, as set forth below. The Class Administrator will determine your proportional shares in accordance with the following formula:
 five (5) settlement shares for each month of employment that you were employed by the Postal Service between November 14, 2001 and _____, 2011;
 one hundred (100) settlement shares if you were denied a request for a workplace accommodation for your deafness or hearing-related impairment on at least one (1) occasion between November 14, 2001 and ____, 2011;
 one hundred (100) settlement shares if you were denied a request for workplace accommodation for your deafness or hearing-related impairment on more than three (3) occasions between November 14, 2001 and ____, 2011;
 fifty (50) settlement shares if you were denied a promotional opportunity due to the failure of the Postal Service to provide a reasonable communication accommodation for your deafness or hearingrelated impairment on at least one (1) occasion between November 14, 2001 and ___________, 2011;
 fifty (50) settlement shares if you have suffered emotional distress as a result of any of the actions listed above or as the result of workplace harassment due to your deafness or hearing-related impairment; and
 one hundred (100) settlement shares if you certify that you sought medical assistance as a result of emotional distress caused by the Postal Service’s denial of your request for a workplace accommodation for your deafness or hearing-related impairment at any point between November 14, 2001 and ____, 2011.
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12. What will the Class Representatives Receive?
The Court has approved eleven (11) named Class Representatives for the Amended Hubbard Class Action. These Class Representatives have deferred their individual EEO complaints and any relief they were entitled to receive, for approximately ten (10) years. They have also dedicated substantial time and energy to assisting Class Counsel in ensuring that the class was adequately represented. Because of these factors, the Class Representatives will each receive a service award of $10,000 in addition to their proportional share as Eligible Damages Class Members based on their responses on the Claim Form.
How to Get Benefits – Submitting a Claim
13. How do I submit a claim?
In order to receive a settlement share payment from the Class Fund, Eligible Damages Class Members must complete the Claim Form attached to this Notice and return it to the Claims Administrator, postmarked by no later than sixty (60) days after the Court issues an Order Granting Final Approval of the Global Settlement. Claim Forms received later than the sixtieth (60th) day after the date the Court issues an Order Granting Final Approval of the Global Settlement will not be considered in any distribution of settlement proceeds. Claim Forms are being sent to you prior to the Court issuing an Order Granting Final Approval of the Global Settlement Agreement in an effort to expedite the settlement process. However, the deadline for you to mail Claim Forms is not until sixty (60) days after the Court issues an Order Granting Final Approval of the Global Settlement Agreement.
Eligible Injunctive Class Members do not need to do anything to receive the benefits of the programmatic or injunctive relief discussed above (e.g., interpreter services) in response to Question # 9. However, you will not receive any monetary relief (i.e., money damages) unless you complete the Claim Form and return it to the Class Administrator, postmarked by no later than sixty (60) days after the Court issues an Order Granting Final Approval of the Global Settlement.
In addition to completing and timely submitting a Claim Form, each Eligible Damages Class Member seeking to participate in the Global Settlement must complete and timely submit a release form (Release Form) before receiving his or her settlement share payment from the Class Fund. The Class Administrator will mail Release Forms to each Eligible Damages Class Member who is entitled to a share of the Class Fund within ninety (90) days after the date the Court enters an Order Granting Final Approval of the Global Settlement Agreement. The Release Form will specify for each Eligible Damages Class Member the amount of his or her settlement share payment as calculated using the distribution formula set forth in response to Question #12 above. The Eligible Damages Class Member must then return the Release Form to the Class Administrator on or before the return date indicated on the Release Form (which deadline will be thirty (30) days after the date on which the Class Administrator mails the Release Form). The Class Administrator will use the postmarked date on the envelope containing the Release Form to determine whether the Release Form was timely returned. The Eligible Class Member’s execution and return of their Release Form will release all of the Eligible Damages Class Member’s claims against the Postal Service as alleged in the Amended Hubbard Class Action. Only Eligible Damages Class Members, who have
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completed, signed and timely returned a Release Form shall be eligible to receive a monetary settlement share under the Global Settlement Agreement.
If you are submitting a Claim Form and Release Form for someone who is deceased, you will need to provide a death certificate for that individual and proof that you are that person’s legal representative. If no one has been chosen to be the legal representative, then you need to state this in the Claim Form, or submit a separate sworn statement explaining, why you think you will be appointed the legal representative of his or her estate. In either situation, you will also need to submit a Standard Form (SF) 1153 - “Claim For Compensation of Deceased Civilian Employee.” The Class Administrator will send you an SF 1153 if needed.
In addition to the information above, if you are submitting a Claim Form for someone who has a physical or mental limitation, you will need to provide proof that you are that person’s legal representative, or submit a separate sworn statement explaining why that person is not able to submit his or her own Claim Form and why you think you have the right to submit a Claim Form for that person.
14. Can I get help filing a claim?
Yes. You can get free help [by contacting Class Counsel at 1 (800) XXX-XXXX?], or you can visit the website www.HubbardSettlement.com, call the Class Administrator at 1 (800) XXX-XXX or send a letter to the Class Administrator at the following address:
[Insert Class Administrator Address]
15. What documentation is required to support my claim?
To be entitled to a monetary award, you must timely submit a complete, signed Claim Form and Release Form to the Class Administrator, as discussed more fully in response to Question #13 above.
16. When will I get my payment?
Payment will not be provided until the Court grants final approval of the Global Settlement Agreement, you have submitted your timely, completed and signed Claim Form and Release Form and after all Claim Forms are reviewed by the Class Administrator. The Postal Service will have until the one hundred ninety-fifth (195th) day after the date the Court issues an Order Granting Final Approval of the Global Settlement Agreement to mail settlement share checks to all Eligible Class Members who provided executed Release Forms. Please be patient.
Remaining in the Settlement
17. What happens if I do nothing?
If you do nothing, you will not get any money from the Global Settlement, but you will not be permitted to pursue past claims similar to those contained in the Amended Hubbard Class Action that are based on incidents or events that occurred prior to ______, 2011.
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18. What am I giving up by submitting a Claim Form and Release Form to obtain monetary relief (i.e., money damages)?
If the Court approves the Global Settlement Agreement as proposed by the parties, you will forfeit your right to initiate or pursue any individual claim that is similar to the claims contained in the Amended Hubbard Class Action unless you have effectively excluded yourself from the settlement in accordance with Question # 20. This means that, unless you exclude yourself from the settlement, as of the date the Court grants final approval of the Global Settlement, any similar claims that you may have will be extinguished; and the Postal Service will be forever released from liability to you for those claims. This global release of claims against the Postal Service will apply regardless of whether you submit a Claim Form and/or a Release Form. However, as noted above, you will forfeit your right to any money damages under the terms of the Global Settlement Agreement unless you submit a Claim Form and Release Form. If the Court does not approve the Global Settlement Agreement, the Claim Form will have no effect. However, regardless of whether the Global Settlement Agreement is ultimately approved, rejected or voided, any Class Member who signs a Release Form will be deemed to waive all claims in the Tighe Class Action, the Hubbard Class Action and/or the Amended Hubbard Class Action. The Postal Service has agreed to honor executed Release Forms (and provide the monetary and injunctive relief specified under the terms of the Global Settlement Agreement to class members who release their claims), regardless of whether or not the Global Settlement Agreement is approved, rejected, stayed or voided.
Excluding yourself from the monetary terms of the settlement
19. Am I permitted to exclude myself and sue the Postal Service for the same thing later?
Yes, if you are an Eligible Damages Class Member, you may exclude yourself from the provisions of the Global Settlement that provide monetary relief. You may do this if you do not want a payment from the Global Settlement and you want to keep the right to sue or continue to sue the Postal Service for money damages on your own based on the legal issues in this case. This is called excluding yourself — or “opting out” of the Damages Settlement Class.
However, even if you opt out of the Damages Settlement Class, if you are a current employee of the Postal Service who is an Eligible Injunctive Class Member, you may not exclude yourself from provisions of the Global Settlement Agreement that provide injunctive relief -- i.e., the changes in policy that the Postal Service has agreed to implement that are described in response to Question # 9 above. You may only exclude yourself from the monetary relief portions of the Global Settlement.
20. How do I exclude myself from the Global Settlement?
To exclude yourself from the Global Settlement, you must send a letter that includes the following:
 Your name, address, and telephone number,
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 A statement that makes clear that you want to be excluded from Hubbard v. Donahoe, Civil Action No 03-1062, and
 Your signature.
You must mail your exclusion request, postmarked no later than __________________ [sixty (60) days after the Court issues an Order Granting Preliminary Approval of the Global Settlement], to:
Hubbard Settlement Exclusions C/O Class Administrator
Class Administrator Address
21. If I don’t exclude myself, can I sue the Postal Service for the same thing later?
No. Unless you exclude yourself from the money damages portions of the Global Settlement, you give up the right to sue the Postal Service for the claims that the Global Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from the Damages Settlement Class to continue your own lawsuit.
22. If I exclude myself, can I still get benefits from the Global Settlement?
You will not get any money if you exclude yourself from the monetary relief portions of the Global Settlement. However, to the extent you are an Eligible Injunctive Class Member, you will still benefit from the changes in policy that the Postal Service has agreed to implement pursuant to the Global Settlement.
The Lawyers Representing You
23. Do I have a lawyer in this case?
Yes. Thomas S. Williamson, Jr., Esq., of the law firm of Covington & Burling LLP, 1201 Pennsylvania Avenue, NW, Washington, DC 20004; Kevin Flesch, Esq., of the Law Office of Kevin Flesch, 333 W. Hampden Avenue, Ste. 710, Englewood, CO 80110; Elaine Gardner, Esq., of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, 11 Dupont Circle, N.W., Suite 400, Washington, D.C. 20036; and James E. McCollum, Jr., Esq., of the law firm of McCollum & Associates, LLC, 7309 Baltimore Avenue, Suite 117, College Park, MD 20741, are your lawyers in this case, and they are referred to collectively as “Class Counsel.” You do not have to pay Class Counsel. If you want to be represented by your own lawyer, and have that lawyer appear in Court for you in this case, you may hire one at your own expense.
24. How will the lawyers be paid?
Class Counsel will ask the Court to approve an award of attorneys’ fees and expenses in the amount of one million five hundred fifty thousand dollars ($1,550,000). This sum was agreed to by the parties to cover Class Counsel’s attorneys’ fees and reimbursement of expenses. Class Counsel has pursued these claims on behalf of Named Plaintiffs and the Class without receiving any compensation for its services or
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reimbursement of its out-of-pocket expenses, and the award that the parties have agreed to is substantially less than the approximately three million three hundred thousand dollars ($3.3 million) in legal fees and expenses that class counsel has incurred over the course of the nine-year representation of the Named Plaintiffs and the Class. Class Counsel will also ask the Court to award at least $10,000 to each of the named Class Representatives, who helped the lawyers on behalf of the whole class.
If you choose to hire your own attorney, you need to remember that you will have to pay that attorney with your own money; and your attorney will have to follow the Court’s orders in this case.
Commenting on the Global Settlement
You can tell the Court that you don’t agree with the Global Settlement or some part of it.
25. How do I tell the Court what I think about the Global Settlement?
If you have comments about, or disagree with, any aspect of the Global Settlement, including the requested attorneys’ fees, you may express your views in writing to the Court. The written response should include your name, address, telephone number, the case name and number (Hubbard et al. v. Donahoe, Civil Action No. 03-1062); a brief explanation of your reasons for objecting; and your signature. You must send your written response, if any, in writing to the Court at the following address:
The Honorable Richard T. Leon United States District Court for the District of Columbia 333 Constitution Avenues, N.W., Washington, DC 20001
You must file your written response with the Court by ______________ [45 days after the Order Granting Preliminary Approval of the Global Settlement Agreement] to be considered timely. You also must send copies of your written responses to Class Counsel and Counsel for the Postal Service as follows:
Class Counsel:
Thomas S. Williamson, Jr., Esq. Covington & Burling, L.L.P. 1201 Pennsylvania Avenue, N.W., Washington, D.C. 20004
Kevin C. Flesch, Esq. Law Office of Kevin Flesch 333 W. Hampden Avenue, Ste. 710 Englewood, CO 80110.
Counsel for the Postal Service:
Beverly Russell, Esq. Assistant United States Attorney United States Department of Justice 555 Fourth Street, NW, Room E-4915
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Washington, DC 20530
David B. Ellis, Esq. Chief Counsel, NELU Employment and Labor Law United States Postal Service 475 L’Enfant Plaza, SW, Room 6238 Washington, DC 20260-1149
Anyone who does not timely file a response objecting to the terms of the Global Settlement Agreement in the foregoing manner shall be deemed to have waived all objections and shall be foreclosed from making any objections to the Global Settlement Agreement.
The Court’s Fairness Hearing
26. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Fairness Hearing at [INSERT TIME AND DATE] at the United States District Court for the District of Columbia (333 Constitution Avenues, N.W., Washington, DC 20001) in the courtroom of the Honorable Richard J. Leon. There will be a sign language interpreter at the hearing. The Fairness Hearing may be moved to a different date or time without additional notice, so class members intending to attend the Fairness Hearing should (in addition to complying with all instructions and requirements above) confirm the date, time and location of the Fairness Hearing with Class Counsel or by checking for updates on www.HubbardSettlement.com. At this hearing the Court will consider whether the Global Settlement is fair, reasonable and adequate. The Court will also evaluate the proposed attorneys’ fee award. If there are objections or comments, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the Global Settlement. We do not know how long the Court’s decision will take after the Fairness Hearing is concluded. Please be patient.
27. Do I have to come to the hearing?
No. Your attendance is not required if you properly mailed a written response. Class Counsel is prepared to answer the Court’s questions on your behalf. If either you or your personal attorney wants to attend the hearing, you may attend at your own expense. As long as any objection or written comment you filed was postmarked before the deadline, the Court will consider it.
28. May I ask for permission to speak at the hearing?
Yes. You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying it is your “Notice of Intent to Appear in the Hubbard, et al, v. Donahoe class action case.” The letter must include your name, address, telephone number, and signature as well as the name and address of your lawyer, if one is appearing for you. Your Notice of Intent to Appear must be postmarked no later than ______, and sent to the addresses listed in response to Question #25 above.
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29. If the Court grants final approval to the Global Settlement, may I appeal its decision?
Yes, but only if you are:
(1) an Eligible Damages Class Member who has not opted out of the Global Settlement, and you have filed a timely objection to the Global Settlement Agreement by taking the steps discussed in response to Question # 25 above;
OR
(2) an Eligible Injunctive Class Member and you have filed a timely objection to the Global Settlement Agreement by taking the steps discussed in response to Question # 25 above.
If you meet these criteria, then you will have the right to appeal the Court’s final order granting approval to the Global Settlement to the U.S. Court of Appeals for the District of Columbia Circuit.
Getting More Information
30. How do I get more information?
This Notice summarizes the Global Settlement. You can get more information about the Global Settlement by contacting Class Counsel at 1 (800) XXX-XXXX. You can also visit the website www.HubbardSettlement.com, call the Class Administrator at 1 (800) XXX-XXX or send a letter to the Class Administrator at the following address:
[Insert Class Administrator Address]
A copy of the Claims Form is attached to this Notice and you can also download a copy from the Hubbard Settlement website www.HubbardSettlement.com.
This Notice is only a summary of the Global Settlement and related matters, including the conditions under which any claims similar to those contained in the Amended Hubbard Class Action will be released. If there is any inconsistency between this Notice and the actual Global Settlement Agreement, the Global Settlement Agreement governs. More detailed information about this litigation, including the Global Settlement Agreement, key pleadings and filings of the Parties and the orders and rulings entered by the Court may be obtained on the Hubbard Settlement website at www.HubbardSettlement.com.
Again, the important deadlines are:
 Last Day to Submit a Written Objection or Response to the Global Settlement: ______________ [45 days after the Order Granting Preliminary Approval of the Global Settlement Agreement].
18 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

Case 1:03-cv-01062-RJL Document 138-2 Filed 10/21/11 Page 126 of 180  Last Day to Exclude Yourself From Global Settlement: Must be postmarked by
________________________ [60 days after the Order Granting Preliminary Approval of the Global Settlement Agreement].  Last Day to Submit a Claim Form: Must be postmarked within sixty (60) days of the Order Granting Final Approval of the Global Settlement Agreement.  Last Day to Submit Release Form: Must be postmarked within thirty (30) days of the date on which it is mailed to you. (It is required to be mailed to you within ninety (90) days after the Court’s entry of its Order Granting Final Approval of the Global Settlement Agreement.)
19 For More Information: [Call 1-800-xxx-xxxx?] or Visit www.HubbardSettlement.com

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 HUBBARD v. POTTER

27

Cite as 247 F.R.D. 27 (D.D.C. 2008)

1. Federal Civil Procedure O1634, 1636.1

Bruce C. HUBBARD et al., Plaintiffs,

Five deaf employees of the United

v.

States Postal Service (USPS) failed to show

that number of documents produced by Post-

John E. POTTER, Postmaster General, master General permitted a reasonable de-

United States Postal Service,

duction that other documents existed or did

Defendant.

exist and had been destroyed, as required to

Civil Action No. 03–1062 (RJL/JMF).

justify additional discovery in their putative class action alleging that Postmaster Gener-

United States District Court, District of Columbia.

al’s failure to provide a qualified sign language interpreter at safety meetings and mandatory work meetings prevented them

Jan. 3, 2008.

from performing their duties safely.

Background: Five deaf employees of the United States Postal Service (USPS) brought putative class action against the Postmaster General, alleging that Postmaster General’s failure to provide a qualified sign language interpreter at safety meetings and mandatory work meetings prevented them from performing their duties safely. Postmaster General moved to end pre-certification discovery and for leave to designate a rebuttal expert.
Holdings: The District Court, John M. Facciola, United States Magistrate Judge, held that:
(1) employees failed to show that documents produced by Postmaster General permitted a reasonable deduction that other documents existed or did exist and had been destroyed, justifying additional discovery; but
(2) evidentiary hearing was required for determination of whether supplemental production of documents was necessary;
(3) theoretical possibility that other electronic documents might exist did not justify additional electronic discovery; and
(4) Postmaster General was not entitled to leave to designate a rebuttal expert.
Motion to end pre-certification discovery granted in part and denied in part, and motion to designate rebuttal expert denied.

2. Federal Civil Procedure O1634
Speculation that there is more that has not been produced will not suffice to justify additional discovery of documents.
3. Federal Civil Procedure O1615.1
Evidentiary hearing was required for determination of whether supplemental production of documents was necessary, in putative class action brought by five deaf employees of the United States Postal Service (USPS) against the Postmaster General, alleging that Postmaster General’s failure to provide a qualified sign language interpreter at safety meetings and mandatory work meetings prevented them from performing their duties safely, where employees were able to point to the existence of additional responsive documents that Postmaster General had initially failed to produce and mislabeled ‘‘non-responsive’’ when he did produce them.
4. Federal Civil Procedure O1581
Theoretical possibility that other electronic documents might exist did not justify additional discovery, in putative class action brought by five deaf employees of the United States Postal Service (USPS) against the Postmaster General, alleging that Postmaster General’s failure to provide a qualified sign language interpreter at safety meetings and mandatory work meetings prevented them from performing their duties safely, absent any evidence that additional responsive documents existed. Fed.Rules Civ.Proc. Rule 26(b)(2)(C)(iii), 28 U.S.C.A.

28

247 FEDERAL RULES DECISIONS

5. Federal Civil Procedure O1938.1 Postmaster General was not entitled to
leave to designate a rebuttal expert, in putative class action brought by five deaf employees of the United States Postal Service (USPS), alleging that Postmaster General’s failure to provide a qualified sign language interpreter at safety meetings and mandatory work meetings prevented them from performing their duties safely, although employees’ expert filed a second report after deadline set forth in scheduling order, where Postmaster General had been given ample opportunity to designate an expert witness, designate a rebuttal expert, and depose employees’ expert on not one but two occasions, following submission of both of employees’ expert’s reports.
Carla M. Mathers, James E. McCollum, Jr. & Associates, P.C., James E. McCollum, Jr., Mccollum & Associates, LLC, College Park, MD, Thomas S. Williamson, Jr., Frederick G. Sandstrom, Christopher Michael Denig, Shamoil Tamim Shipchandler, Covington & Burling LLP, Elizabeth Elaine Gardner, Washington Lawyers’ Committee for Civil Rights & Urban, Washington, DC, for Plaintiffs.
Beverly Maria Russell, Elisabeth E. Boyan, Oliver W. McDaniel, U.S. Attorney’s Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
JOHN M. FACCIOLA, United States Magistrate Judge.
This case was referred to me for resolution of all non-dispositive motions. Currently pending and ready for resolution are the following two motions: 1) defendant’s Motion to End Pre–Certification Discovery and Memorandum of Points and Authorities in Support Thereof (‘‘Defs. Mot. re Discovery’’), and 2) Defendant’s Motion for Leave to Designate a Rebuttal Expert and Serve that Expert’s Report, and Memorandum of Points and Authorities in Support Thereof (‘‘Defs. Mot. re Expert’’). For the reasons stated below, the first motion will be granted in part and denied in part and the second motion will be denied.

BACKGROUND
Plaintiffs are five deaf employees of the United States Postal Service (‘‘USPS’’) who work in various facilities across the country. The gravamen of their complaint is that they have been denied a qualified sign language interpreter at safety meetings and mandatory work meetings. Accordingly, plaintiffs claim that they have been prevented from performing their duties safely, which they contend is an essential function of their job.
Plaintiffs are currently in the process of seeking class certification pursuant to Rules 23(b)(2) and (3) of the Federal Rules of Civil Procedure. To that end, on December 21, 2005, the Court bifurcated discovery into two distinct periods—pre and post-certification discovery. Since then, and with the assistance of the Court, the parties have engaged in pre-certification discovery. Although it should now be time for pre-certification discovery to end and for the case to proceed to resolution of the remaining issues, plaintiffs have raised legitimate concerns regarding the discovery that has been thus far produced by defendant.
DISCUSSION
I. Motion to End Pre–Certification Discovery
A. The Parties’ Arguments
Defendant moves to end pre-certification discovery (save for the completion of expert witness depositions) on the grounds that ample time has passed and that plaintiffs should now have the discovery they need:
Plaintiffs either (a) have the evidence they need for class certification and are attempting to collect that which they need for trial on the merits, or (b) have failed in their attempts to meet the class certification requirements following this Court’s dismissal of their first class complaint and are trying to squeeze every last document out of the Postal Service in a vain attempt to piece together a plausible class certification theory for their second amended complaint.
Defs. Mot. re Discovery at 7.
Plaintiffs counter that, thus far, defendant’s discovery responses have been ‘‘gross-

HUBBARD v. POTTER

29

Cite as 247 F.R.D. 27 (D.D.C. 2008)

ly insufficient and manifestly incomplete.’’ duction that other documents may exist or

Plaintiffs’ Opposition to Defendant’s Motion did exist and have been destroyed. See Zu-

to End Pre–Certification Discovery (‘‘Plains. bulake v. UBS Warburg LLC, 217 F.R.D.

Opp.’’) at 1. Plaintiffs also argue that 1) 309, 313 (S.D.N.Y.2003) (holding that addi-

numerous documents produced by defendant tional discovery was mandated where plain-

in response to plaintiffs’ discovery requests tiff knew that defendant’s production was

have been nevertheless characterized by de- insufficient because plaintiff herself produced

fendant as ‘‘non-responsive,’’ 2) certain facili- numerous responsive documents). Accord

ties failed to provide documents for the full Peskoff v. Faber, 244 F.R.D. 54 (D.D.C.2007)

five years identified in the Court’s order, and (holding that additional discovery of electron-

3) certain facilities failed to produce any elec- ically stored communications was warranted

tronic documents. Id. at 6.

where 1) plaintiff testified of his frequent use

Plaintiffs therefore seek another round of of e-mail as a means of communication, 2)

discovery, a stage in the litigation that can there was in existence one such e-mail, and

only be described as ‘‘meta-discovery,’’ i.e., 3) the previous search produced curious re-

discovery about the discovery. First, plain- sults); Ameriwood Indus., Inc., v. Liberman,

tiffs want to take the depositions of 1) a No. 06–CV–524, 2006 WL 3825291, at *3

subset of the senior officials who responded (E.D.Mo. Dec. 27, 2006) (holding that plain-

‘‘regarding the process of preserving, locat- tiff’s production of a responsive e-mail justi-

ing, and producing documents responsive to fied the inference that other responsive e-

the Court’s February 22, order.’’ Plains. mails existed).

Opp. at 12. Second, plaintiffs want to take a Rule 30(b)(6) deposition regarding the Postal Service’s ‘‘efforts to institute a document hold and preserve documents relevant to this litigation.’’ Id. According to plaintiffs, the paucity of the documents justifies the taking of additional 30(b)(6) depositions of another, or perhaps the same, subset of senior officials ‘‘regarding their facilities’ reasonable accommodation practice and procedures.’’ Id. In other words, plaintiffs contend that the absence of documents suggests the appropriateness of requiring that the officials who originally submitted the surveys be deposed about how, if at all, their facilities are accommodating deaf employees.

According to plaintiffs, three inferences may be drawn from the alleged ‘‘paucity’’ of defendant’s document production: ‘‘First, facilities may possess additional responsive documents, but those documents have not yet been located or produced to plaintiffs. Second, facilities may have at one time possessed additional responsive documents, but those documents were lost or destroyed, and no longer exist. Third, facilities may never have had additional responsive documents.’’ Plains. Opp. at 7. But, that there is a fourth and equally likely possibility that the designated officials kept the records they were supposed to and turned them over to plaintiffs when asked to do so. In other words,

B. Analysis

plaintiffs fail to account for the possibility that they may in fact have already received

1. The General Paucity of Documents all responsive documents.

[1, 2] Courts supervising discovery are often confronted by the claim that the production made is so paltry that there must be more that has not been produced or that was destroyed. Speculation that there is more will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end. Instead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable de-

That the volume of documents produced by a particular facility ‘‘doesn’t make sense’’ given the number of deaf employees working at that facility is not persuasive. While plaintiffs may have their own ideas about how many documents a particular facility should have produced, that is simply of no moment. In order for the court to reason, as it must under Zubulake and similar cases, that additional discovery is warranted, the Court must have more to go by than a hunch on plaintiffs’ part.

30

247 FEDERAL RULES DECISIONS

If I were at this point to order a supplemental submission from the Postal Service officials who responded and an explanation by them of how they conducted the search for the documents that I ordered produced, I would in essence be asking them to certify, for a second time, that which they have already certified. Pursuant to Rule 26(g) of the Federal Rules of Civil Procedure, all productions must be accompanied by a signature:
By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made;
Fed.R.Civ.P. 26(g).
Plaintiffs provide me with nothing more than their speculation as a basis to believe that the attorneys for the defendant made an implicitly false certification in their collecting the results of the survey I ordered.
2. The Production of ‘‘Non–Responsive’’ Documents
[3] Plaintiffs’ argument that additional discovery is warranted because on several occasions defendant produced responsive documents yet maintained that they were nonresponsive, is far more compelling. For example, on page 8 of their opposition to defendant’s motion, plaintiffs provide four examples of categories of documents that were turned over yet labeled ‘‘non-responsive.’’ According to plaintiffs, and the Court agrees, these documents were in fact responsive. The first such category of documents identified by plaintiffs is documents produced by the St. Paul Post Office. According to plaintiffs, this branch ‘‘produced 130 ‘non-responsive’ supplemental pages containing multiple documents indicating payment for certified interpreters to attend safety, disciplinary, and other employee meetings between late 2004 and 2007.’’ Plains. Opp. at 8. Plaintiffs then argue, rightly so, that these documents are responsive to plaintiffs’ request for production of ‘‘ ‘[d]ocuments that evidence the retention or employment of a sign lan-

guage interpreter at any safety meeting’ and ‘[d]ocuments that relate or pertain to a policy or procedure adopted to accommodate deaf employees’ attendance at any meetings.’ ’’ Id. Clearly, documents such as bills or receipts for interpreter services at various meetings are evidence of defendant’s policy regarding the treatment of their deaf employees and as such are relevant to this litigation and must be produced. The fact that defendant failed to initially produce these documents, and in fact labeled them nonresponsive when it did produce them, is certainly troubling and warrants further inquiry. Therefore, the court will set a date for an evidentiary hearing to take the testimony of Elisabeth Boyen, attorney for the United States Postal Service. Thereafter, the court will determine if any supplemental production is warranted.
3. The ‘‘Five Year’’ Period
My Memorandum Opinion 1 of February 22, 2007, contained ten interrogatories and seven requests for production of documents. Questions one through four seek information about the current or present circumstances within the defendant’s facilities. All were phrased in the present tense, e.g., ‘‘Does the facility hold safety meetings which all employees are either required or expected to attend.’’ Order of February 22, 2007, at 5, 2007 WL 604949, at *3. Question five seeks information about whether the official was aware of any procedure ‘‘that is now or was ever in place to ascertain whether deaf employees who will be attending any safety meeting can lip read with sufficient ability to understand what was being said at the meeting.’’ Id. (emphasis added). Thus, question five sought information about both current and past procedures. Id. Questions 6 to 10 then asked the official what he or she knows about any such past requests for accommodation. Finally, I required the production of documents that I defined by specific nature or category, i.e., they had to relate to the request made in the past five years, as described in question 6.
In a footnote appearing above the word ‘‘years’’ in question six, I further indicated

1. Hubbard v. Potter, 2007 WL 604949 (D.D.C.

Feb.22, 2007)

HUBBARD v. POTTER

31

Cite as 247 F.R.D. 27 (D.D.C. 2008)

that I understood that the parties differed as Indeed, Defendant would be prejudiced if

to the class period but that Judge Leon not permitted to respond to Cokely’s con-

would ultimately resolve that issue. I added clusions in his second report. Moreover,

that, in the meanwhile, I had ‘‘chosen five failure to allow Defendant the opportunity

years as a reasonable period of time to use to to present expert opinion and testimony

assess typicality and the consequential scope responding to the new claims found in

of discovery.’’ Id. While I might have been Cokely’s second report will be a disservice

clearer, I intended that five year period to to adjudication of this suit, essentially de-

apply only to questions 5–10 and therefore to priving the Court of valuable testimony.

any requests for accommodation that had been made during that period. I certainly did not intend to create a ‘‘five year discovery period’’ 2 for all ten of the questions in my Memorandum.

Defs. Mot. re Expert at 4.
Unfortunately for defendant, this argument comes too late. As noted by plaintiffs, pursuant to the scheduling order entered by Judge Leon on December 21, 2005, all expert

4. Electronic Documents
[4] Plaintiffs’ last argument in favor of the taking of additional discovery, that defendant failed to produce all responsive electronic documents, like plaintiffs’ first argument, lacks merit. For example, although plaintiffs complain that many facilities provided very little by way of electronic documentation, plaintiffs concede that ‘‘[s]ome of the 25 covered facilities produced a significant volume of hard copies of electronic correspondence.’’ Plains. Opp. at 9. In addition, unlike the situation discussed above where, based on defendant’s production of ‘‘non-responsive’’ documents, plaintiffs are able to point to the existence of additional responsive material, plaintiffs have no evidence that there exist additional responsive electronic documents. Rather, as with plaintiffs’ general argument regarding the paucity of documents, plaintiffs can point to nothing more than their own speculation that other electronic documents exist. Thus, based solely on the fact that some electronic documents have already been produced, I cannot find on this record that the theoretical possibility that other electronic documents might exist justifies the addi-

designations were due on or before March 3, 2006, with rebuttal designations due on or before March 31, 2006. At that point in time, defendant chose not to designate an expert witness. It also chose not to designate a rebuttal expert witness. On September 8, 2006, however, when plaintiffs’ expert filed his supplemental report, defendant moved to strike, limit, or exclude the report on the grounds that it exceeded the subject matter of the first report. In denying defendant’s motion, the Court fashioned a practical solution to address defendant’s concerns by allowing defendant to take a supplemental deposition of plaintiffs’ expert. Defendant has thus had ample opportunity to address the issues raised by plaintiffs’ expert’s supplemental report. Defendant has identified no reason why the court should allow defendant to change its mind at this late date, when defendant was clearly given ample opportunity to 1) designate an expert witness, 2) designate a rebuttal expert, and 3) depose plaintiffs’ expert on not one but two occasions, following the submission of both of plaintiffs’ experts’ reports. Defendant’s motion will therefore be denied.

tional discovery plaintiffs seek. See Fed. An Order accompanies this Memorandum

R.Civ.P. 26(b)(2)(C)(iii).

Opinion.

II. Motion to Designate a Rebuttal Expert

SO ORDERED.

[5] Defendant also moves the Court for permission to designate a rebuttal expert. According to defendant, the designation of a rebuttal expert was necessitated by the filing of a second report by plaintiffs’ expert:

,

2. See Plains. Opp. at 1.

 
 2007 WL 604949 Only the Westlaw citation is currently available.
United States District Court, District of Columbia.
Bruce C. HUBBARD et al., Plaintiffs, v.
John E. POTTER, Postmaster General, United States Postal Service, Defendant.
Civil Action No. 03-1062 (RJL/JMF). |
Feb. 22, 2007.
Attorneys and Law Firms
Carla M. Mathers, James E. McCollum, Jr., James E. McCollum, Jr. & Associates, P.C., College Park, MD, Thomas S. Williamson, Jr., Nadia Ibrahim Shihata, Christopher Michael Denig, Shamoil Tamim Shipchandler, Covington & Burling, Elizabeth Elaine Gardner, Washington Lawyers’ Committee for Civil Rights & Urban, Washington, DC, for Plaintiffs.
Beverly Maria Russell, U.S. Attorney’s Office for D.C., Oliver W. McDaniel, U.S. Attorney’s Office for the District of Columbia, Civil Division Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION
JOHN M. FACCIOLA, United States Magistrate Jduge.
*1 Plaintiffs are five deaf employees of the United States Postal Service (“USPS”) from various facilities across the country. Each plaintiff claims to have been denied a qualified sign language interpreter at safety meetings and mandatory work meetings and therefore claims not to have understood the information USPS was trying to convey. Plaintiffs also claim that USPS is failing to comply with its own written policy, which requires (at a minimum) that qualified sign language interpreters are provided at meetings to communicate with employees who can sign. Plaintiffs claim that defendant’s refusal to provide the qualified sign language interpreters has prevented them from performing an essential function of their job-safety.

DISCUSSION
This case was referred to me for the resolution of the pending discovery motions. Following is a brief discussion of the context in which discovery takes place in this instance.
I. Discovery in the Context of a Pre-Certification Class Action Plaintiffs seek class certification pursuant to Rule 23(b)(2) and (3) of the Federal Rules of Civil Procedure. As a prerequisite to an action under either Rule 23(b) or (c) however, the following must be true: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). In addition, if the requirements of Rule 23(a) have been satisfied and either “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole” or “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy,” then class certification is appropriate. See Fed.R.Civ.P. 23(b)(2) and (3).
Discovery in the context of this pre-certification stage can be difficult to navigate:
[While] [c]ourts often bifurcate discovery between certification issues and those related to the merits of the allegations ... There is not always a bright line between the two. Courts have recognized that information about the nature of the claims on the merits and the proof that they require is important to deciding certification. [Thus,] [a]rbitrary insistence on the merits/class discovery distinction sometimes thwarts the informed judicial assessment that current class certification practice emphasizes.

Manual for Complex Litigation (Fourth) § 21.14 (2004).
II. The Pending Motions In the case at bar, the court has determined that a bifurcation of discovery into two distinct periods is appropriate. See Scheduling Order of December 21, 2005(RJL). The question then becomes how to provide the plaintiffs with the discovery they need without creating an undue and unnecessary burden on the defendants. As has been stated:
*2 Obviously, some discovery is necessary prior to a determination of class certification. National Organization for Women v. Sperry Rand Corp., 88 F.R.D. 272, 276 (D.Conn.1980); see also, East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S.Ct. 1891, 1897-98, 52 L.Ed.2d 453 (1977). However, the recognized need for pre-certification discovery is subject to limitations which may be imposed by the court, and any such limitations are within the sound discretion of the court. National Organization for Women, 88 F.R.D. at 277; Chateau de Ville Productions, Inc. v. Tams-Witmark Music Library, Inc., 586 F .2d 962, 966 (2d Cir.1978). The discovery which is permitted should be sufficiently broad that the plaintiffs have a fair and realistic opportunity to obtain evidence which will meet the requirements of Rule 23, yet not so broad that the discovery efforts present an undue burden to the defendant. National Organization for Women, 88 F.R.D. at 277. “Discovery is not to be used as a weapon, nor must discovery on the merits be completed precedent to class certification.” Id.
In managing discovery in cases of this nature, district courts are required to balance the need to promote effective case management, the need to prevent potential abuse, and the need to protect the rights of all parties. Shushan v. University of Colorado, 132 F.R.D. at 268.
Tracy v. Dean Witter Reynolds, Inc., 185 F.R.D. 303, 304-05 (D . Colo.1998).
In this case, there are only the following six possibilities as to how individual postal facilities handled the problem presented by the attendance of a deaf employee at a safety meeting: 1) the facility ignores the deaf person who is left to shift for himself, 2) the facility hands out written materials without any consideration of whether the deaf person can read and write, 3) the facility receives a request from a deaf person for accommodation and determines that written materials will suffice, 4) the facility receives a request from a deaf person for accommodation and determines that written materials will

suffice but first ascertains that the deaf person can read and write, 5) the facility receives a request from a deaf person for accommodation and determines whether the deaf person can adequately lip read and concludes that he can and that no further accommodation is necessary, and 6) the facility receives a request from a deaf person for accommodation and without further inquiry provides an ASL interpreter for the meeting.
The parties have agreed that there are 122 postal facilities that have 5 or more deaf employees and that discovery will be limited to these facilities. The more uniformity among the facilities, the more likely that the claim of any one deaf employee, such as the individual plaintiffs, is typical of the complaints of the class. The more variation among the facilities, the poorer that argument becomes. Thus, understanding how each facility deals with the possibilities I have posited is certainly a fit topic for discovery; indeed, as to the typicality factor, it is the heart of the matter.
*3 In my view, taking a Rule 30(b)(6) deposition is a particularly inefficient way to gather that information. Take an official in the Postal Service who could speak to whatever national policies they are that bear on the question. That person might speak confidently about what is required of each facility, but it would be impossible for her to state whether the facility in Detroit or Los Angeles complies with the policy. She could only say that she did not know and it would be an unfair burden to force her to educate herself as to all 122 facilities when there is a more efficient way to gather that information. That more efficient way is to seek the information from the facility itself as to how it deals with the possibilities I have identified. But, in my view, demanding information from all 122 facilities is, at this stage of the case, unnecessary since the issue is one of typicality, not universality. A random sampling should suffice. To that end, I will ask the parties to put the 122 facilities in alphabetical order and then identify every fifth facility, yielding a total of 24 facilities. As to each facility, the most senior official in the facility will be required under oath to answer the following questions:
1. Does the facility hold safety meetings which all employees are either required or expected to attend?
2. Does the facility, independent of any request by an employee, have in place a procedure that should be followed so that deaf employees can learn what is discussed at the meeting?
3. What is that procedure, if one exists?
4. If written materials are distributed at the meeting, does the facility make a determination whether the deaf

employees at the meeting can read the materials being distributed?
5. Is the official aware of any procedure that is now or was ever in place to ascertain whether deaf employees who will be attending any safety meeting can lip read with sufficient ability to understand what is being said at the meeting?

ability to read and write.
3. Documents that evidence requests by deaf employees for any form of accommodation so that they can understand what is said at a safety meeting.
*4 4. Documents that evidence the response to such a request, whether accepted or denied.

6. Is the official aware of any requests made in the last five years1 by deaf employees for any form of accommodation so that they can understand what is being said at a safety meeting?
7. If the official is aware of such a request, what accommodation, if any, was provided to that employee?
8. What record, if any, was made of the request and its resolution?
9. Who made the decision to accommodate or refuse the request?
10. If there was such a request, does the official recall whether a sign language interpreter was provided to the deaf employees at the meeting? In addition, each facility will be required to provide copies of the following:

5. Documents that evidence the retention or employment of a sign language interpreter at any safety meeting.
6. Complaints, formal or otherwise, by deaf employees pertaining in any way to safety meetings.
7. Documents that evidence the resolution of such complaints, whether formally or informally, to include settlement agreements between any deaf employee and the Postal Service.
The parties will be granted 60 days in which to complete the discovery. All other discovery of any type or kind will be prohibited during these 60 days. Once that period is over, I will convene a status conference to determine what, if any, further discovery will be permitted.
An Order accompanies this Memorandum Opinion.

1. Documents that relate or pertain to a policy or procedure adopted to accommodate deaf employees’ attendance at any meetings.

All Citations Not Reported in F.Supp.2d, 2007 WL 604949

2. Documents that relate or pertain to ascertaining whether deaf employees can lip read or to test their

Footnotes

1

I understand the parties differ at to the proper class period. Judge Leon will resolve that when he determines whether

or not to certify the class. I have chosen five years as a reasonable period of time to use to assess typicality and the

consequential scope of discovery.

 
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CLOSED,JURY,TYPE-H

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:03-cv-01062-RJL

HUBBARD et al v. POTTER Assigned to: Judge Richard J. Leon Cause: 28:1343 Violation of Civil Rights Plaintiff BRUCE C. HUBBARD
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Date Filed: 05/14/2003 Date Terminated: 07/31/2013 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant
represented by Carla M. Mathers TCS ASSOCIATES GENERAL COUNSEL 7361 Calhoun Place Suite 340 Rockville, MD 20855 (240) 476-0701 Fax: (240) 428-1830 Email: carla.mathers@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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James E. McCollum , Jr. MCCOLLUM & ASSOCIATES, LLC 7309 Baltimore Avenue Suite 117 College Park, MD 20740 (301) 864-6070
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Lindsey Bishop Lang STEPTOE & JOHNSON LLP 1331 Connecticut Avenue, N.W. Washington, DC 20036-1795 (202) 429-6497 Fax: (202) 221-0697 Email: llang@steptoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1041 Fax: (202) 319-1010 Email: matthew_handley@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phyllis A. Jones COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662-5868 Fax: (202) 778-5868 Email: pajones@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662-5273 Fax: 202-778-5273 Email: sduraiswamy@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Shannen Wayne Cofﬁn STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036
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(202) 429-6255 Fax: (202) 429-3902 Email: scofﬁn@steptoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662-5438 Fax: (202) 778-5438 Email: twilliamson@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Elaine Gardner WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 ext. 131 Fax: (202) 319-1010 Email: elaine_gardner@washlaw.org TERMINATED: 02/20/2013

Kevin C. Flesch LAW OFFICE OF KEVIN C. FLESCH 333 West Hampden Avenue Suite 710 Englewood, CO 80110 (303) 806-8886 Fax: (303) 806-8882 PRO HAC VICE ATTORNEY TO BE NOTICED

Nadia Ibrahim Shihata COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662-5585 Email: nshihata@cov.com TERMINATED: 12/08/2006

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Shamoil Tamim Shipchandler COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662-5475
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Plaintiff JUDY M. SCHULD

District of Columbia live database
Fax: (202) 778-5475 Email: sshipchandler@cov.com TERMINATED: 02/26/2008
represented by Carla M. Mathers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Denig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederick G. Sandstrom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. McCollum , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phyllis A. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Plaintiff GRACE J. SHIRK-EMMONS

Elizabeth Elaine Gardner (See above for address) TERMINATED: 02/20/2013
Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia Ibrahim Shihata (See above for address) TERMINATED: 12/08/2006
Shamoil Tamim Shipchandler (See above for address) TERMINATED: 02/26/2008
represented by Carla M. Mathers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Michael Denig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick G. Sandstrom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E. McCollum , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phyllis A. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Elaine Gardner (See above for address) TERMINATED: 02/20/2013

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nadia Ibrahim Shihata (See above for address) TERMINATED: 12/08/2006

Plaintiff LUCY I. STIEGLITZ

Shamoil Tamim Shipchandler (See above for address) TERMINATED: 02/26/2008
represented by Carla M. Mathers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Denig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederick G. Sandstrom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. McCollum , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsey Bishop Lang

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phyllis A. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Elaine Gardner (See above for address) TERMINATED: 02/20/2013

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nadia Ibrahim Shihata (See above for address) TERMINATED: 12/08/2006

Plaintiff
GEORGE R. WESTENBERGER individually and on behalf of a class of persons similarly situated

Shamoil Tamim Shipchandler (See above for address) TERMINATED: 02/26/2008
represented by Carla M. Mathers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Christopher Michael Denig (See above for address)
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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederick G. Sandstrom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. McCollum , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phyllis A. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Elaine Gardner (See above for address) TERMINATED: 02/20/2013

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Nadia Ibrahim Shihata (See above for address)
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TERMINATED: 12/08/2006

Plaintiff SUSAN TIGHE

Shamoil Tamim Shipchandler (See above for address) TERMINATED: 02/26/2008
represented by Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GAIL WALKER

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Shannen Wayne Cofﬁn
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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES GRALUND

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ARLEN WHITSIT

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Matthew K. Handley (See above for address) LEAD ATTORNEY
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District of Columbia live dataLbaEseAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff DIANE WHITENER

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?133105413442093-L_1_0-1

Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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DANIEL TIGHE

District of Columbia live database
represented by Lindsey Bishop Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew K. Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shankar Duraiswamy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannen Wayne Cofﬁn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Samuel Williamson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin C. Flesch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
JOHN E. POTTER Postmaster General, United States Postal Service TERMINATED: 10/19/2012

represented by Beverly Maria Russell U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252-2531 Fax: (202) 514-8780 Email: beverly.russell@usdoj.gov TERMINATED: 09/08/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elisabeth Boyan Fry PENSION BENEFIT GUARANTY CORPORATION 1200 K Street, NW Washington, DC 20005 (202) 326-4020 Fax: (202) 326-4112 Email: fry.elisabeth@pbgc.gov

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Defendant PATRICK R. DONAHOE Postmaster General, United States Postal Service

District of Columbia live database
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Lo U.S. ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, DC 20530 (202) 252-2541 Fax: (202) 252-2599 Email: Michelle.Lo@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver W. McDaniel U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252-2508 Fax: (202) 252-2599 Email: oliver.mcdaniel@usdoj.gov TERMINATED: 12/23/2008
represented by Wynne Patrick Kelly U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2545 Fax: (202) 252-2599 Email: wynne.kelly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/14/2003
05/14/2003 05/14/2003 05/30/2003 07/10/2003
07/14/2003

# Docket Text
1 COMPLAINT against JOHN E. POTTER (Filing fee $ 150.) , ﬁled by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER.(nmw, ) (Entered: 05/16/2003)
SUMMONS Not Issued as to JOHN E. POTTER (nmw, ) (Entered: 05/16/2003)
SUMMONS (3) Issued as to JOHN E. POTTER, U.S. Attorney and U.S. Attorney General (nmw, ) (Entered: 05/16/2003)
2 ATTORNEY APPEARANCE. (McDaniel, Oliver) (Entered: 05/30/2003)
3 MOTION for Extension of Time to File Answer re 1 Complaint or Other Response and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 07/10/2003)
4 ORDER granting 3 MOTION for Extension of Time to File Answer re 1 Complaint or Other Respond. Defendant shall have up to and including 8/22/03, to answer or to

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otherwise respond. Signed by Judge Richard J. Leon on 7/12/03. (whb) (Entered: 07/14/2003)

08/04/2003

5 MOTION for Extension of Time to File Motion for Class Certiﬁcation and Memorandum in Support Thereof by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER. (Denig, Christopher) (Entered: 08/04/2003)

08/06/2003

6 NOTICE of Appearance by Carla M. Mathers, James E. McCollum Jr. on behalf of BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (jf, ) (Entered: 08/07/2003)

08/22/2003

7 ANSWER to Complaint by JOHN E. POTTER.(McDaniel, Oliver) (Entered: 08/22/2003)

10/27/2003

8 NOTICE of Appearance by Elizabeth Elaine Gardner on behalf of all plaintiffs (Gardner, Elizabeth) (Entered: 10/27/2003)

11/13/2003

9 ENTERED IN ERROR.....REPORT of Rule 26(f) Planning Meeting. (Denig, Christopher) Modiﬁed on 11/14/2003 (jf, ). (Entered: 11/13/2003)

11/13/2003

10 MOTION to Dismiss, MOTION to Strike 1 Complaint (Class Allegations) and Memorandum of Points and Authorities in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order # 2 Attachment)(McDaniel, Oliver) (Entered: 11/13/2003)

11/14/2003

NOTICE OF CORRECTED DOCKET ENTRY. Document No. 9 was entered in error and counsel was instructed to re-ﬁle said pleading, using correct category. (jf, ) (Entered: 11/14/2003)

11/14/2003

11 MEET AND CONFER STATEMENT. (Denig, Christopher) (Entered: 11/14/2003)

11/26/2003

Set/Reset Hearings: Status Conference set for 12/9/2003 03:00 PM in Courtroom 7 before Judge Richard J. Leon. (whb) (Entered: 11/26/2003)

11/28/2003

12 Memorandum in opposition to motion re 10 to strike or dismiss the class allegations of the complaint ﬁled by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER. (Denig, Christopher) (Entered: 11/28/2003)

12/04/2003

13 Consent MOTION to Continue Status Conference by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER. (Denig, Christopher) (Entered: 12/04/2003)

12/10/2003

14 ORDER GRANTING re 13 Consent MOTION to Continue Status Conference ﬁled by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER Status Conference set for 1/13/2004 11:00 AM in Courtroom 7 before Judge Richard J. Leon. Signed by Judge Richard J. Leon on 12/8/03. (zwhb) (Entered: 12/10/2003)

12/10/2003

15 MOTION for Extension of Time to File Response/Reply as to 12 Memorandum in Opposition (Unopposed) and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/10/2003)

12/15/2003

16 ORDER granting 15 MOTION for Extension of Time to File Response/Reply as to 12 Memorandum in Opposition and Memorandum in Support Thereof by JOHN E. POTTER Replies due by 12/17/2003.. Signed by Judge Richard J. Leon on 12/11/03. (zwhb) (Entered: 12/15/2003)

12/17/2003

17 MOTION for Extension of Time to File Response/Reply as to 12 Memorandum in Opposition (Two-Day) and Memorandum in Support Thereof by JOHN E. POTTER.

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(Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/17/2003)

12/19/2003

18 First MOTION to Compel Defendant to Respond to Plaintiffs' First Set of Interrogatories and Plaintiffs' First Request for Production of Documents by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER. (Attachments: # 1 Exhibit Plaintiffs' Discovery Requests# 2 Text of Proposed Order Plaintiffs' Proposed Order re: Motion to Compel)(Denig, Christopher) (Entered: 12/19/2003)

12/19/2003

19 REPLY to opposition to motion re 10 Defendant's Motion to Strike or Dismiss Class Action Allegations of the Complaint ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 12/19/2003)

12/19/2003

20 MOTION for Protective Order and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order # 2 Attachment (Plaintiff's Discovery))(McDaniel, Oliver) (Entered: 12/19/2003)

12/19/2003

21 MOTION for Extension of Time to Respond to Plaintiffs' Pre-conference Discovery Requests, and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/19/2003)

12/22/2003

22 ORDER granting 17 MOTION for Extension of Time to File Response/Reply as to 12 Memorandum in Opposition (Two-Day) and Memorandum in Support Thereof by JOHN E. POTTER. Responses due by 12/19/2003. Signed by Judge Richard J. Leon on 12/20/03. (whb) (Entered: 12/22/2003)

01/05/2004

23 ORDER granting 21 MOTION for Extension of Time to Respond to Plaintiffs' Preconference Discovery Requests, and Memorandum in Support Thereof by JOHN E. POTTER. Defendant shall have thirty days after the Court orders the commencment of discovery in this case to respond to plaintiff's discovery requests dated November 14, 2003. Signed by Judge Richard J. Leon on 12/24/03. (whb) (Entered: 01/05/2004)

01/08/2004

Reset Hearings: Status Conference RE-set for 1/30/2004 02:30 PM in Courtroom 7 before Judge Judge Richard J. Leon. (whb) (Entered: 01/08/2004)

01/09/2004

24 ORDERED, that the taking of discovery be stayed in this case, at this time, relieving Defendant of any obligation to respond to or object to the seventeen interrogatories and ﬁfty requests to produce . Signed by Judge Richard J. Leon on 1/7/04. (whb) (Entered: 01/09/2004)

01/30/2004

Minute Entry for proceedings held before Judge Richard J. Leon : Status Conference held on 1/30/2004. Motion Hearing set for 4/23/2004 02:00 PM in Courtroom 7 before Judge Richard J. Leon. (Court Reporter PATTY GELS.) (whb) (Entered: 01/30/2004)

02/11/2004

25 SUPPLEMENTAL MEMORANDUM in Further Support of Plaintiffs' Class Action Complaint and in Support of Proceeding Immediately with Class Discovery from Plaintiffs. (Attachments: # 1 Afﬁdavit Declaration of Carla Mathers# 2 Exhibit Exhibit A March 20, 2002 USPS Memorandum# 3 Exhibit Exhibit B USPS Afﬁrmative Employment Plan Report)(Denig, Christopher) (Entered: 02/11/2004)

02/11/2004

26 NOTICE of Appearance by Shamoil Tamim Shipchandler on behalf of BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Shipchandler, Shamoil) (Entered: 02/11/2004)

02/11/2004

27 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION TO STRIKE OR DISMISS CLASS ACTION ALLEGATIONS OF THE COMPLAINT from John E. Potter. (McDaniel, Oliver) (Entered: 02/11/2004)

03/11/2004 28 ORDER granting 5 MOTION for Extension of Time to File Motion for Class

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Certiﬁcation and Memorandum in Support Thereof by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER . Plaintiff's shall ﬁle their motion for class certiﬁcation pursuant to Local Rule 23.1(b) at a time deemed appropriate by the Court. Signed by Judge Richard J. Leon on 3/10/04. (whb) (Entered: 03/11/2004)

04/23/2004

Minute Entry for proceedings held before Judge Richard J. Leon : Motion Hearing held on 4/23/2004 re 10 MOTION to Dismiss, MOTION to Strike 1 Complaint (Class Allegations) ﬁled by JOHN E. POTTER-TAKEN UNDER ADVISEMENT. (Court Reporter Patty Gels.) (whb) (Entered: 04/23/2004)

05/26/2004

29 MEMORANDUM OPINION AND ORDER: DENYING: re 20 MOTION for Protective Order ﬁled by JOHN E. POTTER, GRANTING IN PART: 18 First MOTION to Compel Defendant to Respond to Plaintiffs' First Set of Interrogatories and Plaintiffs' First Request for Production of Documents ﬁled by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER, GRANTING WITHOUT PREJUDICE: 10 MOTION to Dismiss MOTION to Strike 1 Complaint (Class Allegations) ﬁled by JOHN E. POTTER. Signed by Judge Richard J. Leon on 5/26/04. (whb) (Entered: 05/26/2004)

06/18/2004

30 Second MOTION for Extension of Time to Complete Discovery and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order) (McDaniel, Oliver) (Entered: 06/18/2004)

07/12/2004

MINUTE ORDER granting 30 Second MOTION for Extension of Time to Complete Discovery and Memorandum in Support Thereof by JOHN E. POTTER until July 15, 2004. Signed by Judge Richard J. Leon on 7/12/2004. (lcrjl2, ) (Entered: 07/12/2004)

07/16/2004

31 MOTION for Extension of Time to Complete Discovery (For One Day) by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 07/16/2004)

07/20/2004

32 NOTICE OF TRANSCRIPT FILED for Motion hearing held on dates April 23, 2004; Court Reporter: Patty A. Gels. (jf, ) (Entered: 07/23/2004)

07/27/2004

33 ORDER granting 31 MOTION for Extension of Time to Complete Discovery (For One Day) by JOHN E. POTTER. Defendant shall have up to an including 7/16/04, to respond to Plaintiff's discovery request. Signed by Judge Richard J. Leon on 7/24/04. (whb) (Entered: 07/27/2004)

02/08/2005

34 MOTION for Judgment on the Pleadings by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 02/08/2005)

02/08/2005

35 NOTICE of Filing Corrected Certiﬁcate of Service by JOHN E. POTTER re 34 MOTION for Judgment on the Pleadings (Attachments: # 1 Corrected Certiﬁcate of Service) (McDaniel, Oliver) (Entered: 02/08/2005)

02/11/2005

36 NOTICE of Filing Stipulated Privacy Protection Order by GEORGE R. WESTENBERGER, JOHN E. POTTER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ (Attachments: # 1 Stipulated Privacy Protection Order)(McDaniel, Oliver) (Entered: 02/11/2005)

02/22/2005

37 Memorandum in opposition to motion re 34 ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Exhibit Exhibits 1-7)(Denig, Christopher) (Entered: 02/22/2005)

02/22/2005

38 MOTION to Compel by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ.

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(Attachments: # 1 Exhibit Exhibits 1-13)(Denig, Christopher) (Entered: 02/22/2005)
39 STIPULATED PRIVACY PROTECTION ORDER . Signed by Judge Richard J. Leon on 2/22/05. (whb) (Entered: 02/23/2005)
40 MOTION for Extension of Time to File Response/Reply as to 37 Memorandum in Opposition, 38 MOTION to Compel by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 03/03/2005)
MINUTE ORDER granting 40 Motion for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for Judgment and An Opposition to Plaintiffs' Motion to Compel. It is further ordered that the defendant shall ﬁle said documents by March 23, 2005. Signed by Judge Richard J. Leon on 3/8/05. (lcrjl2, ) (Entered: 03/08/2005)
41 Second MOTION for Extension of Time to File Response/Reply as to 37 Memorandum in Opposition, 38 MOTION to Compel by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 03/23/2005)
42 REPLY to opposition to motion re 34 ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 03/28/2005)
43 Second MOTION for Protective Order by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order # 2 Memorandum of Points and Authorities)(McDaniel, Oliver) (Entered: 03/28/2005)
44 Memorandum in opposition to motion re 38 ﬁled by JOHN E. POTTER. (Attachments: # 1 Exh. A (Supp. Doc. Prod. 2/11/05)# 2 Exh. B (Sample Survey Form)# 3 Exh. C (Survey Results))(McDaniel, Oliver) (Entered: 03/28/2005)
45 NOTICE of Filing Exhibit by JOHN E. POTTER re 43 Second MOTION for Protective Order, 44 Memorandum in Opposition (Attachments: # 1 Exhibit D (USPS SelfIdentiﬁcation of Handicap Form))(McDaniel, Oliver) (Entered: 03/29/2005)
MINUTE ORDER granting nunc pro tunc 41 Motion for Extension of Time to File Response/Reply to Plaintiff's Opposition to Defendant's Motion for Judgment and Opposition to Plaintiff's Motion to Compel. Defendant shall have up to and including March 28, 2005 to ﬁle a reply to Plaintiff's Opposition to Defendant's Motion for Judgment and an Opposition to Plaintiff's Motion to Compel. Signed by Judge Richard J. Leon on 4/5/05. (lcrjl2, ) (Entered: 04/05/2005)
46 REPLY to opposition to motion re 43 ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Denig, Christopher) (Entered: 04/07/2005)
47 MOTION to Stay Discovery by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 04/08/2005)
48 Memorandum in opposition to motion re 47 ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Denig, Christopher) (Entered: 04/12/2005)
MINUTE ORDER granting 47 Defendant's MOTION to Stay Discovery. It is further ordered that all discovery in this matter is stayed pending decision on defendant's Motion for Judgment on the Pleadings. Signed by Judge Richard J. Leon on 4/21/05. (lcrjl2, ) (Entered: 04/21/2005)
49 MOTION for Leave to File An Amended Class Action Complaint by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-

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EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Exhibit)(Denig, Christopher) (Entered: 07/12/2005)

07/12/2005

50 MEMORANDUM re 49 MOTION for Leave to File An Amended Class Action Complaint ﬁled by BRUCE C. HUBBARD,, JUDY M. SCHULD,, GRACE J. SHIRKEMMONS,, LUCY I. STIEGLITZ,, GEORGE R. WESTENBERGER, by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ. (Denig, Christopher) (Entered: 07/12/2005)

07/25/2005

51 MOTION for Extension of Time to File Response/Reply as to 50 Memorandum,, 49 MOTION for Leave to File An Amended Class Action Complaint by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 07/25/2005)

07/26/2005

52 NOTICE of Plaintiff's Consent by JOHN E. POTTER re 51 MOTION for Extension of Time to File Response/Reply as to 50 Memorandum,, 49 MOTION for Leave to File An Amended Class Action Complaint (McDaniel, Oliver) (Entered: 07/26/2005)

08/09/2005

53 Second MOTION for Extension of Time to File Response/Reply as to 50 Memorandum,, 49 MOTION for Leave to File An Amended Class Action Complaint by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 08/09/2005)

08/16/2005

54 Memorandum in opposition to motion re 49 ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 08/16/2005)

08/22/2005

55 ORDER denying 34 Motion for Judgment, denying without prejudice 38 Motion to Compel, denying without prejudice 43 Motion for Protective Order, granting 49 Motion for Leave to File, granting nunc pro tunc 51 Motion for Extension of Time to File Response/Reply, granting nunc pro tunc 53 Motion for Extension of Time to File Response/Reply; it is further ORDERED that the discovery period is re-stated. Signed by Judge Richard J. Leon on 08/22/05. (tb) (Entered: 08/22/2005)

08/22/2005

58 FIRST AMENDED COMPLAINT against JOHN E. POTTERﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ.(nmw, ) (Entered: 09/29/2005)

09/08/2005

56 MOTION for Extension of Time to File Answer to Amended Complaint by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 09/08/2005)

09/22/2005

57 ANSWER to Complaint (First Amended) by JOHN E. POTTER.(McDaniel, Oliver) (Entered: 09/22/2005)

09/22/2005

MINUTE ORDER granting 56 MOTION for Extension of Time. The defendant shall ﬁle an answer or otherwise respond to the Amended Complaint in this matter by September 22, 2005. Signed by Judge Richard J. Leon on 9/22/05. (lcrjl2, ) (Entered: 09/22/2005)

10/13/2005

59 MOTION for Extension of Time to Respond to Plaintiffs' Second Request for Production of Documents by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order) (McDaniel, Oliver) (Entered: 10/13/2005)

10/13/2005

60 MOTION for Hearing (Scheduling Conference) by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 10/13/2005)

10/14/2005

61 Memorandum in opposition to motion re 59 Defendant's Motion for An Extention of Time to Respond to Plaintiffs' Second Request for Production of Documents ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Exhibit Exhibit A# 2 Text of Proposed Order)(Denig, Christopher) (Entered: 10/14/2005)

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MINUTE ORDER granting nunc pro tunc 59 Defendant's MOTION for Extension of Time. It is hereby ORDERED that Defendant has until November 15, 2005 to respond to Plaintiffs' Second Request for Production of Documents. Signed by Judge Richard J. Leon on 11/14/05. (lcrjl2) (Entered: 11/14/2005)

11/16/2005

MINUTE ORDER granting 60 MOTION for Hearing (Scheduling Conference) by JOHN E. POTTER. Scheduling Conference set for 12/5/2005 at 10:30 AM in Courtroom 7 before Judge Richard J. Leon. Signed by Judge Richard J. Leon on 11/16/05. (lcrjl2) (Entered: 11/16/2005)

12/01/2005

62 Joint MOTION to Continue the Status Conference by GEORGE R. WESTENBERGER, JOHN E. POTTER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/01/2005)

12/02/2005

MINUTE ORDER denying 62 Joint MOTION to Continue the Status Conference by GEORGE R. WESTENBERGER, JOHN E. POTTER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. It is hereby ORDERED that the parties shall appear for a Scheduling Conference before Judge Richard J. Leon on the orginally scheduled date of 12/5/2005 at 10:30 AM in Courtroom 7. Signed by Judge Richard J. Leon on 12/2/05. (lcrjl2) (Entered: 12/02/2005)

12/04/2005

63 MEET AND CONFER STATEMENT. (Attachments: # 1 Exhibit A)(Denig, Christopher) (Entered: 12/04/2005)

12/05/2005

Minute Entry for proceedings held before Judge Richard J. Leon : Status Conference held on 12/5/2005. (Court Reporter Rebecca King.) (whb) (Entered: 12/06/2005)

12/15/2005

64 NOTICE Regarding Local Civil Rule 23.1 by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ (Denig, Christopher) (Entered: 12/15/2005)

12/19/2005

65 NOTICE of Filing Scheduling Order by JOHN E. POTTER (Attachments: # 1 Scheduling Order)(McDaniel, Oliver) (Entered: 12/19/2005)

12/22/2005

66 SCHEDULING ORDER: Motions for class certiﬁcation due by 5/30/2006. Opposition due 6/30/06 Replies due by 7/17/2006. Signed by Judge Richard J. Leon on 12/21/05. (whb) (Entered: 12/22/2005)

01/27/2006

67 TRANSCRIPT of Status Conference held on December 05, 2005 before Judge Richard J. Leon. Court Reporter: Rebecca King. The public may view the document in the Clerk's Ofﬁce between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 01/30/2006)

04/25/2006

68 MOTION for Protective Order As to the Noticed Deposition of Patrick R. Donahoe, Deputy Postmaster General and Chief Operating Ofﬁcer, and Certiﬁcation of Conference, and Memorandum of Points and Authorities by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 04/25/2006)

04/26/2006

69 NOTICE of Filing Attachments by JOHN E. POTTER re 68 MOTION for Protective Order As to the Noticed Deposition of Patrick R. Donahoe, Deputy Postmaster General and Chief Operating Ofﬁcer, and Certiﬁcation of Conference, and Memorandum of Points and Authorities (Attachments: # 1 Exh. 1 (Notice of Deposition of Patrick R. Donahoe)# 2 Exh. 2 (March 20, 2002 Memorandum)# 3 Exh. 3 (Plaintiffs' March 14, 2006 Rule 30(b)(6) Notice)# 4 Exh. 4 (Defendant's Responses and Objections to Plaintiffs' "First" Set of Class-Related Interrogatories and Requests for Production of Documents)# 5 Declaration of Patrick R. Donahoe)(McDaniel, Oliver) (Entered: 04/26/2006)

05/01/2006 70 Joint MOTION for Extension of Time to Complete Discovery (Limited Extension to

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Complete Outstanding Discovery) by GEORGE R. WESTENBERGER, JOHN E. POTTER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 05/01/2006)
71 NOTICE of Appearance by Nadia Ibrahim Shihata on behalf of GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ (Shihata, Nadia) (Entered: 05/01/2006)
72 MOTION for Protective Order Regarding Certain Topics Enumerated in Plaintiffs' Amended 30(b)(6) Deposition Notice by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 05/01/2006)
73 MOTION to Compel CERTAIN TESTIMONY, DOCUMENTS, AND INTERROGATORY ANSWERS FROM DEFENDANT AND CROSS-MOTION TO COMPEL TESTIMONY FROM PATRICK R. DONAHOE by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Afﬁdavit of Thomas Williamson, Esq.# 2 Exhibit 1-24# 3 Text of Proposed Order)(Shihata, Nadia) (Entered: 05/01/2006)
74 MOTION to Compel Initial Disclosures, Response to Interrogatory, and Production of Documents by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 05/02/2006)
75 NOTICE of Filing Exhibits in Support of Motion to Compel by JOHN E. POTTER re 74 MOTION to Compel Initial Disclosures, Response to Interrogatory, and Production of Documents (Attachments: # 1 Exhibit 1 (Plaintiff's Objections & Responses to Defendant's First Set of Interrogatories to the Proposed Class)# 2 Exhibit 2 (Plaintiff's Objections & Responses to Defendants First Set of Document Requests to the Proposed Class)# 3 Exhibit 3 (March 7, 2006 Letter from Defendant to Plaintiffs)# 4 Exhibit 4 (April 11, 2006 Letter from Defendant to Plaintiffs)# 5 Exhibit 5 (April 26, 2006 Letter from Defendant to Plaintiffs)# 6 Exhibit 6 (Agency's First Set of Discovery Requests to the Individually Named Plaintiffs))(McDaniel, Oliver) (Entered: 05/06/2006)
MINUTE ORDER REFERRING CASE to Magistrate Judge Facciola for resolution of non-dispositive motions. Signed by Judge Richard J. Leon on 5/9/06. (lcrjl2) (Entered: 05/09/2006)
76 NOTICE of Appearance by Beverly Maria Russell on behalf of JOHN E. POTTER (Russell, Beverly) (Entered: 05/12/2006)
77 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' Motion to Compel and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/12/2006)
CASE REFERRED to Magistrate Judge John M. Facciola for resolution of non dispositive motions. (jsc) (Entered: 05/15/2006)
79 MOTION to Seal Plaintiffs' Memorandum in Opposition to Defendant's Motion for a Protective Order Regarding Certain Topics Enumerated In Plaintiffs' Amended Notice of Deposition Pursuant to Fed. R. Civ. P. 30(b)(6) by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Shihata, Nadia) (Entered: 05/16/2006)
80 NOTICE of Filing Redacted "Version One" of Plaintiffs' Memorandum in Opposition to Defendant's Motion for a Protective Order Regarding Certain Topics Enumerated In Plaintiffs' Amended Notice of Deposition Pursuant to Fed. R. Civ. P. 30(b)(6) by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD,

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GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ re 72 MOTION for Protective Order Regarding Certain Topics Enumerated in Plaintiffs' Amended 30(b)(6) Deposition Notice (Attachments: # 1 # 2)(Shihata, Nadia) (Entered: 05/16/2006)
81 Memorandum in opposition to re 74 MOTION to Compel Initial Disclosures, Response to Interrogatory, and Production of Documents ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Exhibit A-E# 2 Text of Proposed Order)(Shihata, Nadia) (Entered: 05/16/2006)
82 ORDER re referral to Judge Facciola for non-dispositive motions. Signed by Magistrate Judge John M. Facciola on 5/17/06. (SP, ) (Entered: 05/17/2006)
83 MOTION for Extension of Time to Respond to Plaintiffs' Motion to Compel and Memorandum in Support Thereof by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/17/2006)
Paperless ORDER granting 83 Motion for Extension of Time to Respond to Plaintiff's Motion to Compel. Signed by Magistrate Judge John M. Facciola on 5/18/06. (SP, ) (Entered: 05/18/2006)
84 Memorandum in opposition to re 73 MOTION to Compel CERTAIN TESTIMONY, DOCUMENTS, AND INTERROGATORY ANSWERS FROM DEFENDANT AND CROSSMOTION TO COMPEL TESTIMONY FROM PATRICK R. DONAHOE ﬁled by JOHN E. POTTER. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 6# 6 Exhibit 9# 7 Exhibit 10# 8 Exhibit 11# 9 Text of Proposed Order)(Russell, Beverly) (Entered: 05/18/2006)
85 NOTICE of Filing Exhibits Supporting Defendant's Opposition to Plaintiffs' Motion to Compel by JOHN E. POTTER (Attachments: # 1 Exhibit 5# 2 Exhibit 7# 3 Exhibit 8) (Russell, Beverly) (Entered: 05/24/2006)
86 Joint MOTION for Extension of Time to File Response/Reply by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/24/2006)
ORDER granting 86 Joint Motion for Enlargement of Time for the Parties to File Their Replies and Memorandum in Support Thereof. Signed by Magistrate Judge John M. Facciola on 5/25/06. (lcjf1, ) (Entered: 05/25/2006)
87 REPLY to opposition to motion re 74 MOTION to Compel Initial Disclosures, Response to Interrogatory, and Production of Documents, 72 MOTION for Protective Order Regarding Certain Topics Enumerated in Plaintiffs' Amended 30(b)(6) Deposition Notice ﬁled by JOHN E. POTTER. (Attachments: # 1 Exhibit 12. Cokely Report# 2 Exhibit 13. EL-312, Section 543# 3 Exhibit 14. Hubbard Transcript# 4 Exhibit 15. Various Depositions)(Russell, Beverly) (Entered: 05/31/2006)
88 REPLY to opposition to motion re 73 MOTION to Compel CERTAIN TESTIMONY, DOCUMENTS, AND INTERROGATORY ANSWERS FROM DEFENDANT AND CROSSMOTION TO COMPEL TESTIMONY FROM PATRICK R. DONAHOE ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Exhibit Exhibits 1-8) (Shihata, Nadia) (Entered: 06/02/2006)
89 Consent MOTION to Amend/Correct First Amended Class Action Complaint (Consent Motion to File Second Amended Class Action Complaint) by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Shihata, Nadia) (Entered: 07/03/2006)

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Paperless ORDER granting 89 Motion to Amend/Correct. Signed by Magistrate Judge John M. Facciola on 7/10/06. (SP, ) (Entered: 07/10/2006)
90 FIRST AMENDED COMPLAINT against JOHN E. POTTER ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ.(jf, ) (Entered: 07/12/2006)
91 ANSWER to Amended Complaint (Second Amended Complaint) by JOHN E. POTTER. Related document: 90 Amended Complaint ﬁled by BRUCE C. HUBBARD,, JUDY M. SCHULD,, GRACE J. SHIRK-EMMONS,, LUCY I. STIEGLITZ,, GEORGE R. WESTENBERGER,.(McDaniel, Oliver) (Entered: 07/27/2006)
Paperless ORDER granting nunc pro tunc 77 Motion for Extension of Time to Respond to Plaintiff's Motion to Compel, granting 79 Motion to Seal. Signed by Magistrate Judge John M. Facciola on 9/7/06. (SP, ) (Entered: 09/07/2006)
Set/Reset Hearings: A hearing on all pending discovery motions is set for 10/27/2006 at 02:00 PM in Courtroom 2 before Magistrate Judge John M. Facciola. (SP, ) (Entered: 10/05/2006)
92 NOTICE of Pendency of EEOC Matter by JOHN E. POTTER (McDaniel, Oliver) (Entered: 10/05/2006)
93 NOTICE of Unavailability for Hearing by JOHN E. POTTER re Set/Reset Hearings (McDaniel, Oliver) (Entered: 10/05/2006)
94 Consent MOTION to Continue Motion's Hearing by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 10/10/2006)
ORDER granting 94 Consent Motion to Continue Motion's Hearing. Hearing has been reset for 11/30/06 at 10:00 AM. Signed by Magistrate Judge John M. Facciola on 10/12/06. (SP, ) (Entered: 10/12/2006)
95 MOTION to Strike , Limit or Exclude Plaintiffs' Expert Report by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order # 2 Exh. 1 (Cokely's First Report)# 3 Exh. 2 (Cokely Deposition Pages)# 4 Exh. 3 (Cokely Second Report))(McDaniel, Oliver) (Entered: 11/20/2006)
96 NOTICE of Appearance by Elisabeth E. Boyan on behalf of JOHN E. POTTER (Boyan, Elisabeth) (Entered: 11/21/2006)
97 Memorandum in opposition to re 95 MOTION to Strike , Limit or Exclude Plaintiffs' Expert Report ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Declaration of Thomas S. Williamson, Jr.# 2 Exhibit Exhibits A-D# 3 Text of Proposed Order Proposed Order)(Shihata, Nadia) (Entered: 11/27/2006)
Minute Entry for proceedings held before Magistrate Judge John M. Facciola : Motion Hearing held on 11/30/2006 re 70 Joint MOTION for Extension of Time to Complete Discovery (Limited Extension to Complete Outstanding Discovery) ﬁled by JOHN E. POTTER,, BRUCE C. HUBBARD,, JUDY M. SCHULD,, GRACE J. SHIRKEMMONS,, LUCY I. STIEGLITZ,, GEORGE R. WESTENBERGER; plaintiffs supplemental brieﬁng on defendants stipulation of facts due 10 (ten) business days from today 11/30/06; replies due 7 (seven) business days later. (Court Reporter Pro Typist.) (ldc, ) Modiﬁed on 12/1/2006 (SP, ). (Entered: 11/30/2006)
ORAL ORDER granting 70 Motion for Extension of Time to Complete Discovery . Signed by Magistrate Judge John M. Facciola on 11/30/06. (ldc, ) (Entered: 11/30/2006)

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98 MOTION for Extension of Time to File Response/Reply as to 95 MOTION to Strike , Limit or Exclude Plaintiffs' Expert Report (One-Day Extension) by JOHN E. POTTER. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/07/2006)
99 REPLY to opposition to motion re 95 MOTION to Strike , Limit or Exclude Plaintiffs' Expert Report ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 12/08/2006)
100 NOTICE OF WITHDRAWAL OF APPEARANCE as to GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ. Attorney Nadia Ibrahim Shihata terminated. (Shihata, Nadia) (Entered: 12/08/2006)
101 MEMORANDUM by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Decaration of Thomas S. Williamson, Jr.# 2 Exhibits 1-4)(Denig, Christopher) (Entered: 12/14/2006)
102 TRANSCRIPT of Hearing on Motions held on November 30, 2006 before Judge John M. Facciola. Court Reporter: Pro-Typists, Inc.. The public may view the document in the Clerk's Ofﬁce between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 12/26/2006)
103 REPLY re 101 Memorandum In Opposition to Plaintiffs' Brief In Response to Defendant's Proposed Stipulations of Fact ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 12/29/2006)
104 ERRATA TO DEFENDANT'S BRIEF IN REPLY TO PLAINTIFFS' BRIEF IN RESPONSE TO DEFENDANT'S PROPOSED STIPULATIONS OF FACT by JOHN E. POTTER 103 Reply to Document ﬁled by JOHN E. POTTER,. (McDaniel, Oliver) (Entered: 01/09/2007)
105 NOTICE of Filing Exhibits in Support of Defendant's Brief in Reply to Plaintiffs' Brief in Response to Defendant's Proposed Stipulations of Fact by JOHN E. POTTER re 103 Reply to Document (Attachments: # 1 Exhibit 1 - Defendant's Opposition to Plaintiffs' Motion to Compel# 2 Exhibit 2 - Transcript of November 30, 2006 Motions Hearing (select pages)# 3 Exhibit 3 - July 14, 2006 Deposition of Samuel Pulcrano (select pages)# 4 Exhibit 4 - March 1, 2006 Deposition of Joe Smith (select pages))(McDaniel, Oliver) (Entered: 01/10/2007)
106 NOTICE of Appearance by Frederick G. Sandstrom on behalf of all plaintiffs (Sandstrom, Frederick) (Entered: 02/21/2007)
107 ORDER re discovery. Signed by Magistrate Judge John M. Facciola on 2/22/07. (SP, ) (Entered: 02/22/2007)
108 MEMORANDUM AND OPINION re discovery. Signed by Magistrate Judge John M. Facciola on 2/22/07. (SP, ) (Entered: 02/22/2007)
Set/Reset Hearings: Status Conference set for 5/7/2007 at 02:00 PM in Courtroom 6 before Magistrate Judge John M. Facciola. (SP, ) (Entered: 02/22/2007)
109 ORDER denying without prejudice 68 Motion for Protective Order, denying without prejudice 72 Motion for Protective Order, denying without prejudice 73 Motion to Compel, denying without prejudice 74 Motion to Compel. Signed by Magistrate Judge John M. Facciola on 3/6/07. (SP, ) (Entered: 03/06/2007)
110 Consent MOTION for Extension of Time to Complete Discovery (TO PROVIDE DISCOVERY RESPONSES), MOTION to Continue SCHEDULED STATUS HEARING by

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JOHN E. POTTERMotions referred to John M. Facciola. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 04/20/2007)
MINUTE ORDER granting 110 Motion for Extension of Time to Complete Discovery; granting 110 Motion to Continue. Status presently set for May 7, 2007 has been continued until May 14, 2007 at 9:30 am. Signed by Magistrate Judge John M. Facciola on 5/2/07. (SP, ) (Entered: 05/02/2007)
Set Deadlines/Hearings: Discovery due by 4/30/2007.,Status Hearing set for 5/14/2007 09:30 AM in Courtroom 6 before Magistrate Judge John M. Facciola. (ldc, ) (Entered: 05/03/2007)
Minute Entry. Proceedings held before Magistrate Judge John M. Facciola : Discovery Hearing held on 5/14/2007. Discovery Hearing set for 6/12/2007 09:30 AM in Courtroom 6 before Magistrate Judge John M. Facciola. (Court Reporter Pro Typist.) (ldc, ) (Entered: 05/14/2007)
MINUTE ORDER denying 95 Motion to Strike; ﬁnding as moot 98 Motion for Extension of Time to File Response/Reply. After the deadline set by Judge Leon for the disclosure of expert witness information had passed, and after the deposition of an expert witness, Dennis Cokely, PhD, had been taken, plaintiff sent defendant a second report by that witness, claiming that the second report was necessitated by new material that had not been available to the expert when he produced his ﬁrst report. While defendant moves to strike the second report for failure to be produced before the deadline set by Judge Leon, plaintiffs counter that, as the parties anticipated, additional information was produced during discovery that could not been made available to the expert before he completed his ﬁrst report. It is, in my view, unnecessary to resolve this controversy because all would have to agree that permitting defendant to take the deposition of the expert to inquire about matters that either came into existence or came into his possession after the submission would remove any prejudice that defendant could claim. IT IS THEREFORE ORDERED THAT defendant may take a second deposition of Dr. Cokely to inquire about any matters not discussed in his initial report. Signed by Magistrate Judge John M. Facciola on 5/15/07. (SP, ) (Entered: 05/15/2007)
111 MOTION Leave to Designate a Rebuttal Expert and Serve that Expert's Report and Memorandum in Support Thereof by JOHN E. POTTERMotions referred to John M. Facciola. (Attachments: # 1 Rebuttal Expert's Report# 2 Text of Proposed Order)(Russell, Beverly) (Entered: 06/11/2007)
MINUTE ORDER: Upon consent of the parties at todays discovery status hearing, it is, hereby, ORDERED that defendants shall have until June 29, 2007 to supplement their discovery responses. Defendants shall have until July 13, 2007 to move for the conclusion of discovery. Plaintiffs shall have until August 3, 2007 to oppose/move to compel. Defendants shall have until August 22, 2007 to reply. Signed by Magistrate Judge John M. Facciola on 6/12/07. (SP, ) (Entered: 06/12/2007)
Minute Entry. Proceedings held before Magistrate Judge John M. Facciola : Discovery Hearing held on 6/12/2007. (Court Reporter Pro Typist.) (ldc, ) (Entered: 06/12/2007)
Set/Reset Deadlines: Replies due by 8/22/2007. (ldc, ) (Entered: 06/13/2007)
112 Memorandum in opposition to re 111 MOTION Leave to Designate a Rebuttal Expert and Serve that Expert's Report and Memorandum in Support Thereof ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Denig Declaration# 2 Exhibit Exhibit A-1# 3 Exhibit Exhibit A-2# 4 Exhibit Exhibits B-D# 5 Text of Proposed Order) (Sandstrom, Frederick) (Entered: 06/25/2007)

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113 TRANSCRIPT of Status Hearing on Discovery held on May 14, 2007 before Magistrate Judge John M. Facciola. Court Reporter: Pro-Typists, Inc.. The public may view the document in the Clerk's Ofﬁce between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 06/27/2007)
114 Consent MOTION for Extension of Time to File Response/Reply as to 111 MOTION Leave to Designate a Rebuttal Expert and Serve that Expert's Report and Memorandum in Support Thereof by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order) (McDaniel, Oliver) (Entered: 06/28/2007)
ORDER granting 114 Motion for Extension of Time to File Response/Reply to Plaintiff's Opposition to Motion for Leave to Designate a Rebuttal Expert and Serve that Expert's Report. Replies due by 7/12/2007. Signed by Magistrate Judge John M. Facciola on 6/28/07. (SP, ) (Entered: 06/28/2007)
115 REPLY to opposition to motion re 111 MOTION Leave to Designate a Rebuttal Expert and Serve that Expert's Report and Memorandum in Support Thereof ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 07/12/2007)
116 MOTION To End Pre-Certiﬁcation Discovery by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 07/13/2007)
117 TRANSCRIPT of Status Hearing on Discovery held on June 12, 2007 before Judge John M. Facciola. Court Reporter: Pro-Typists, Inc. The public may view the document in the Clerk's Ofﬁce between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 08/03/2007)
118 Memorandum in opposition to re 116 MOTION To End Pre-Certiﬁcation Discovery "Version One" ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Sandstrom Declaration# 2 Appendix (Redacted)# 3 Text of Proposed Order)(Sandstrom, Frederick) ( Unredacted version of the Opposition to Motion to End Pre-Certiﬁcation ﬁled UNDER SEAL on 8/6/07) Modiﬁed on 8/7/2007 (tg, ). (Entered: 08/03/2007)
119 REPLY to opposition to motion re 116 MOTION To End Pre-Certiﬁcation Discovery ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 08/22/2007)
120 NOTICE OF FILING EXHIBITS UNDER SEAL by JOHN E. POTTER re 119 Reply to opposition to Motion (McDaniel, Oliver) (Entered: 08/28/2007)
121 ORDER denying 111 Motion for Leave to Designate a Rebuttal Expert; granting in part and denying in part 116 Motion to End Pre-Certiﬁcation Discovery. Signed by Magistrate Judge John M. Facciola on 1/3/08. (SP, ) (Entered: 01/03/2008)
122 MEMORANDUM AND OPINION re 116 and 111 . Signed by Magistrate Judge John M. Facciola on 1/3/08. (SP, ) (Entered: 01/03/2008)
Set/Reset Hearings: Evidentiary Hearing set for 1/17/2008 02:00 PM in Courtroom 6 before Magistrate Judge John M. Facciola. (ldc, ) (Entered: 01/07/2008)
123 NOTICE Of Position Concerning Testimony of Agency Counsel by JOHN E. POTTER (McDaniel, Oliver) (Entered: 01/16/2008)
Minute Entry. Proceedings held before Magistrate Judge John M. Facciola: Evidentiary Hearing held on 1/17/2008. Matters to be taken under advisement. (Court Reporter Annie Shaw.) (ldc, ) (Entered: 01/17/2008)
124 Appeal of Magistrate Judge Decision to District Court by JOHN E. POTTER re 122 Memorandum & Opinion, 121 Order on Motion for Miscellaneous Relief, (Attachments:

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# 1 Cokely Deposition Exerpt)(McDaniel, Oliver) (Entered: 01/22/2008)
125 ORDER re evidentiary hearing held on January 17, 2008. Signed by Magistrate Judge John M. Facciola on 1/25/08. (SP, ) (Entered: 01/25/2008)
126 RESPONSE re 124 Appeal of Magistrate Judge Decision to District Court ﬁled by GEORGE R. WESTENBERGER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (Attachments: # 1 Declaration Denig Decl., # 2 Exhibit Ex. A-1, # 3 Exhibit Ex. A-2, # 4 Exhibit Exs. B-D, # 5 Text of Proposed Order)(Sandstrom, Frederick) (Entered: 02/05/2008)
127 REPLY re 124 Appeal of Magistrate Judge Decision to District Court and Supplemental Memorandum in Support of the Appeal ﬁled by JOHN E. POTTER. (McDaniel, Oliver) (Entered: 02/15/2008)
Set/Reset Hearings: Status Conference set for 5/7/2008 03:30 PM in Courtroom 18 before Judge Richard J. Leon. (lcrjl2) (Entered: 04/21/2008)
MINUTE ORDER denying 124 Appeal of Magistrate Judge Decision to District Court by JOHN E. POTTER. Signed by Judge Richard J. Leon on 4/29/2008. (lcrjl2) (Entered: 04/29/2008)
Minute Entry Status Conference held on 5/7/2008 before Judge Richard J. Leon: Status Conference set for 11/24/2008 11:00 AM in Courtroom 18 before Judge Richard J. Leon. (Court Reporter Patty Gels) (tb,) (Entered: 05/07/2008)
128 STIPULATION IN CONNECTION WITH PRE-CERTIFICATION DISCOVERY by GEORGE R. WESTENBERGER, JOHN E. POTTER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ. (McDaniel, Oliver) (Entered: 09/09/2008)
Minute Entry for proceedings held before Judge Richard J. Leon:. Status Conference held on 11/24/2008. (Court Reporter Lisa Grifﬁth.) (kc) (Entered: 11/24/2008)
129 NOTICE OF WITHDRAWAL OF APPEARANCE as to JOHN E. POTTER. Attorney Oliver W. McDaniel terminated. (McDaniel, Oliver) (Entered: 12/23/2008)
130 Joint MOTION for Mediation Referral by GEORGE R. WESTENBERGER, JOHN E. POTTER, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ (Attachments: # 1 Text of Proposed Order)(Sandstrom, Frederick) (Entered: 01/14/2009)
131 ORDER REFERRING CASE to Mediation and granting Joint Motion 130 for mediation. Signed by Judge Richard J. Leon on 1/21/09. (kc) (Entered: 01/22/2009)
132 NOTICE of Appearance by Michelle Lo on behalf of JOHN E. POTTER (Lo, Michelle) (Entered: 02/02/2009)
133 Joint MOTION for Extension of Time to Complete Mediation by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 03/19/2009)
MINUTE ORDER granting 133 Joint MOTION for Extension of Time to Complete Mediation. It is hereby ORDERED that the motion is GRANTED, and the mediation period is extended through 6/22/2009. Signed by Judge Richard J. Leon on 3/23/2009. (lcrjl3) (Entered: 03/23/2009)
134 Joint MOTION for Extension of Time to Complete Mediation by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 06/22/2009)
MINUTE ORDER granting 134 Joint MOTION for Extension of Time to Complete

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Mediation by JOHN E. POTTER. It is hereby ORDERED that the motion is GRANTED, and the mediation period is extended through 9/30/2009. Signed by Judge Richard J. Leon on 6/24/2009. (lcrjl1) (Entered: 06/24/2009)
135 Joint MOTION for Extension of Time to Complete Mediation by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 09/29/2009)
MINUTE ORDER granting 135 Parties' Joint Motion to Extend the Mediation Period. It is hereby ORDERED that the parties' motion is GRANTED; and it is further ORDERED that the mediation period shall be extended no later than March 31, 2010. Signed by Judge Richard J. Leon on 9/30/2009. (lcrjl1) (Entered: 10/01/2009)
136 Joint MOTION for Extension of Time to Complete Mediation by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 03/24/2010)
MINUTE ORDER granting 136 the Parties' Joint Motion to Extend the Mediation Period. It is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the mediation period is extended to September 30, 2010. Signed by Judge Richard J. Leon on 3/31/2010. (lcrjl1) (Entered: 04/01/2010)
137 Joint MOTION for Extension of Time to Complete Mediation and Memorandum of Points and Authorities in Support Thereof by JOHN E. POTTER (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 09/27/2010)
MINUTE ORDER granting 137 Joint Motion to Extend the Mediation Period. It is hereby ORDERED that the motion is GRANTED and that the mediation period be extended to December 30, 2010. Signed by Judge Richard J. Leon on 9/28/10. (lcrjl2) (Entered: 09/28/2010)
138 ENTERED IN ERROR..... MOTION to Certify Class Conditionally, Appointment of Class Representatives and Counsel, Approval of Class Notice, Preliminary Approval of the Proposed Settlement, Approval of Proposed Schedule, Hearing for Final Approval of the Global Settlement Agreement, and Leave to File A Third Amended Complaint by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Jones, Phyllis) Modiﬁed on 10/24/2011 (znmw, ). (Entered: 10/21/2011)
NOTICE OF ERROR re 138 Motion to Certify Class; emailed to pajones@cov.com, cc'd 19 associated attorneys -- The PDF ﬁle you docketed contained errors: 1. Please reﬁle document, 2. P.Jones is not an attorney of record; An attorney who appears on the docket/document must reﬁle. (znmw, ) (Entered: 10/24/2011)
139 NOTICE of Appearance by Phyllis A. Jones on behalf of BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Jones, Phyllis) (Entered: 10/24/2011)
140 Unopposed MOTION to Certify Class and for Appointment of Class Representatives and Counsel; Approval of Class Notice; Preliminary Approval of the Proposed Settlement; Approval of Proposed Schedule; Hearing for Final Approval of Settlement Agreement; and Leave to File Third Amended Complaint by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Jones, Phyllis). Added MOTION for Leave to File Third Amended Complaint, MOTION for Preliminary Approval of Settlement, MOTION for Approval of Proposed Scheduling Order, MOTION for Hearing on 10/25/2011 (znmw, ). (Entered: 10/24/2011)
141 Joint MOTION for Hearing Status Conference and Statement of Points and Authorities in

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Support Thereof by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Attachments: # 1 Text of Proposed Order)(Jones, Phyllis) (Entered: 12/15/2011)
Set/Reset Hearings: Status Conference set for 2/21/2012 10:30 AM in Courtroom 18 before Judge Richard J. Leon. (kc ) (Entered: 02/09/2012)
142 Joint MOTION for Hearing Status Conference and Statement of Points and Authorities in Support Thereof by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Attachments: # 1 Exhibit Exhibit A - Joint Memorandum Providing Factual and Legal Support for Preliminary Approval of Global Settlement Agreement, # 2 Text of Proposed Order Proposed Order)(Jones, Phyllis) (Entered: 06/08/2012)
NOTICE of Hearing: Please take notice that a Status Conference is scheduled for 7/11/2012 at 11:00 AM in Courtroom 18 before Judge Richard J. Leon. (tg, ) (Entered: 06/26/2012)
143 Joint MOTION for Hearing by BRUCE C. HUBBARD (Attachments: # 1 Text of Proposed Order)(Jones, Phyllis) (Entered: 07/25/2012)
MINUTE ORDER denying 143 Joint Motion for Status Conference. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 8/2/12. (lcrjl2) (Entered: 08/02/2012)
144 Joint MOTION for Status Conference by BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER (Attachments: # 1 Text of Proposed Order)(Jones, Phyllis) Modiﬁed on 8/13/2012 to edit event (dr). (Entered: 08/10/2012)
MINUTE ORDER granting in part and denying in part 144 Joint Motion for Status Conference. It is hereby ORDERED that the motion is GRANTED in part, and that a status conference be set for October 4, 2012 at 11:00am. Signed by Judge Richard J. Leon on 9/19/12. (lcrjl2) (Entered: 09/19/2012)
145 Joint MOTION to Take Judicial Notice of Recent D.C. District Court Opinion by BRUCE C. HUBBARD (Attachments: # 1 Exhibit A)(Jones, Phyllis) (Entered: 10/02/2012)
Minute Entry for proceedings held before Judge Richard J. Leon. Status Conference held on 10/4/2012. Status Conference set for 1/22/2013 at 11:00 AM in Courtroom 18 before Judge Richard J. Leon. (Court Reporter Patty Gels.) (kc ) (Entered: 10/04/2012)
146 Joint MOTION to Stay Preliminary Approval of Settlement by BRUCE C. HUBBARD (Attachments: # 1 Text of Proposed Order)(Jones, Phyllis) (Entered: 10/05/2012)
147 NOTICE of Filing of Documents Relating to Hiring of Mediator by BRUCE C. HUBBARD (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Jones, Phyllis) (Entered: 10/17/2012)
148 ORDER granting plaintiffs' 140 Motion for Leave to File a Third Amended Complaint; plaintiffs' motion for Conditional Certiﬁcation of the Proposed Settlement Classes; granting plaintiffs' Motion for Appointment of Class Representatives and Counsel; granting in part and denying in part plaintiffs' motion for Preliminary Approval of the Global Settlement Agreement; plaintiff's motion for Approval of the Class Notice;granting plaintiffs' motion for Approval of Proposed Schedule; granting plaintiffs' motion for Final Hearing of the Settlement Agreement. A Fairness Hearing will be held on January 22, 2013 at 11:00 AM in Courtroom 18. Signed by Judge Richard J. Leon on 10/19/2012. (see order) (kc ) (Entered: 10/19/2012)

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MINUTE ORDER denying as moot 146 Joint Motion for Stay of Order Granting Preliminary Approval of Settlement and Directing Parties to Issue Class Notice. It is hereby ORDERED that the motion is DENIED as moot. Signed by Judge Richard J. Leon on 10/19/12. (lcrjl2) (Entered: 10/19/2012)

10/19/2012

149 THIRD AMENDED CLASS ACTION COMPLAINT against PATRICK R. DONAHOE ﬁled by GRACE J. SHIRK-EMMONS, BRUCE C. HUBBARD, LUCY I. STIEGLITZ, JUDY M. SCHULD, GEORGE R. WESTENBERGER, SUSAN TIGHE, GAIL WALKER, JAMES GRALUND, ARLEN WHITSIT, DIANE WHITENER, DANIEL TIGHE.(znmw, ) (Entered: 10/22/2012)

11/15/2012

MINUTE ORDER. It is hereby ORDERED that a Status Conference be set for 12/13/12 at 11:00am in Courtroom 18 before Judge Richard J. Leon to discuss the Fairness Hearing currently scheduled for 1/22/13. Signed by Judge Richard J. Leon on 11/15/12. (lcrjl2) (Entered: 11/15/2012)

11/16/2012

Set/Reset Hearings: Status Conferences are scheduled for 12/13/2012 at 11:00 AM and for 1/22/2013 at 11:00 AM in Courtroom 18 before Judge Richard J. Leon. (jth) (Entered: 11/16/2012)

12/13/2012

Minute Entry for proceedings held before Judge Richard J. Leon: Status Conference held on 12/13/2012. Status Conference originally set 1/22/2012 is RESCHEDULED for 1/30/2013 at 02:30 PM in Courtroom 18 before Judge Richard J. Leon. (Court Reporter Theresa Sorenson.) (kc ) (Entered: 12/13/2012)

01/24/2013 150 NOTICE of Appearance by Shankar Duraiswamy on behalf of All Plaintiffs (Duraiswamy, Shankar) (Entered: 01/24/2013)

01/25/2013

151 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kevin C Flesch, :FirmLaw Ofﬁce of Kevin C. Flesch, :Address- 333 West Hampden, Ave., Suite 710, Englewood, CO 80110. Phone No. - 303-806-8886. Fax No. - 303-806-8882 by BRUCE C. HUBBARD (Attachments: # 1 Declaration Declaration in Support of Pro Hac Vice Application of K. Flesch, # 2 Text of Proposed Order)(Duraiswamy, Shankar) (Entered: 01/25/2013)

01/25/2013 152 NOTICE of Filing of Joint Response to Class Member Submissions Received to Date by BRUCE C. HUBBARD (Duraiswamy, Shankar) (Entered: 01/25/2013)

01/25/2013

153 NOTICE of Filing of Declaration of Esther F. Lardent by BRUCE C. HUBBARD (Attachments: # 1 Declaration of Esther F. Lardent)(Duraiswamy, Shankar) (Entered: 01/25/2013)

01/30/2013

Minute Entry: Fairness Hearing held on 1/30/2013 before Judge Richard J. Leon: Fairness Hearing continued to 2/15/2013 11:00 AM in Courtroom 18 before Judge Richard J. Leon. Testimonial Statements to Court by: Tim Ryan,Sr., Joe Ortiz, Brian Bush, Marie Bryan and Rostam Yazdani. Interpreters: Mindy Leanie and Michelle Sumner. (Court Reporter Patty Gels) (tb, ) (Entered: 01/31/2013)

01/31/2013

MINUTE ORDER granting 151 Motion for Leave to Appear Pro Hac Vice. It is hereby ORDERED that the motion is GRANTED and that Kevin C. Flesch be, and hereby is, admitted pro hac vice in this case. Signed by Judge Richard J. Leon on 1/31/13. (lcrjl2) (Entered: 01/31/2013)

02/11/2013

154 NOTICE of Filing of Documents Related to Retention of Mediator by BRUCE C. HUBBARD (Attachments: # 1 Declaration of Kenneth R. Feinberg, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Duraiswamy, Shankar) (Entered: 02/11/2013)

02/14/2013 155 ERRATA to Joint Memorandum Providing Factual and Legal Support for Preliminary Approval of Global Settlement Agreement by BRUCE C. HUBBARD 142 Joint MOTION

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for Hearing Status Conference and Statement of Points and Authorities in Support Thereof ﬁled by LUCY I. STIEGLITZ, GEORGE R. WESTENBERGER, GRACE J. SHIRK-EMMONS, JUDY M. SCHULD, BRUCE C. HUBBARD. (Duraiswamy, Shankar) (Entered: 02/14/2013)
Minute Entry for proceedings held before Judge Richard J. Leon: Fairness Hearing held on 2/15/2013. Fairness Hearing continued to 3/1/2013 at 11:00 AM in Courtroom 18 before Judge Richard J. Leon. (Defendant's Witness: Scott Ostermiller; Interpreters: Andrea Casesmith and John Cochrane;Court Reporter Patty Gels.) (kc ) (Entered: 02/15/2013)
156 NOTICE OF SUBSTITUTION OF COUNSEL by Matthew K. Handley on behalf of All Plaintiffs Substituting for attorney Elizabeth Elaine Gardner (Handley, Matthew) (Entered: 02/20/2013)
157 NOTICE of Appearance by Shannen W. Cofﬁn on behalf of All Plaintiffs (Cofﬁn, Shannen) (Entered: 02/22/2013)
158 NOTICE OF FILING OF TIME RECORDS OF COVINGTON & BURLING LLP AND THE WASHINGTON LAWYERS COMMITTEE IN SUPPORT OF JOINT MEMORANDUM PROVIDING FACTUAL AND LEGAL SUPPORT FOR PRELIMINARY APPROVAL OF GLOBAL SETTLEMENT AGREEMENT by JAMES GRALUND, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, DANIEL TIGHE, SUSAN TIGHE, GAIL WALKER, GEORGE R. WESTENBERGER, DIANE WHITENER, ARLEN WHITSIT re 142 Joint MOTION for Hearing Status Conference and Statement of Points and Authorities in Support Thereof (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Duraiswamy, Shankar) (Entered: 02/22/2013)
159 NOTICE OF FILING OF TIME RECORDS OF McCOLLUM & ASSOCIATES, LLC, IN SUPPORT OF JOINT MEMORANDUM PROVIDING FACTUAL AND LEGAL SUPPORT FOR PRELIMINARY APPROVAL OF GLOBAL SETTLEMENT AGREEMENT by JAMES GRALUND, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, DANIEL TIGHE, SUSAN TIGHE, GAIL WALKER, GEORGE R. WESTENBERGER, DIANE WHITENER, ARLEN WHITSIT re 142 Joint MOTION for Hearing Status Conference and Statement of Points and Authorities in Support Thereof (Attachments: # 1 Exhibit 1)(McCollum, James) (Entered: 02/26/2013)
160 NOTICE OF FILING OF EXPENSE RECORDS OF COVINGTON & BURLING LLP by JAMES GRALUND, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ, DANIEL TIGHE, SUSAN TIGHE, GAIL WALKER, GEORGE R. WESTENBERGER, DIANE WHITENER, ARLEN WHITSIT (Attachments: # 1 Exhibit Exhibit 1)(Duraiswamy, Shankar) (Entered: 02/28/2013)
161 NOTICE Second Notice of Filing of Time Records for McCollum & Associates, LLC by JAMES GRALUND, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRKEMMONS, LUCY I. STIEGLITZ, DANIEL TIGHE, SUSAN TIGHE, GAIL WALKER, GEORGE R. WESTENBERGER, DIANE WHITENER, ARLEN WHITSIT (Attachments: # 1 Exhibit Exhibit 1)(McCollum, James) (Entered: 03/01/2013)
Minute Entry for proceedings held before Judge Richard J. Leon: Fairness Hearing held on 3/1/2013. Fairness Hearing set for 3/21/2013 at 11:00 AM in Courtroom 18 before Judge Richard J. Leon. (Court Reporter Patty Gels.) (kc ) (Entered: 03/01/2013)
MINUTE ORDER that the Fairness Hearing scheduled for Thursday, 3/21/2013 at 11:00 AM is vacated and will be rescheduled for another date and time to be determined. Signed

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by Judge Richard J. Leon on 3/18/2013. (jth) (Entered: 03/18/2013)
162 NOTICE to the Court by PATRICK R. DONAHOE (Attachments: # 1 Exhibit Ex. 1, EMail, Nov. 19, 2008, # 2 Exhibit Ex. 2, E-Mail, March 1, 2010, # 3 Exhibit Ex. 3, E-Mail, March 6, 2009, # 4 Exhibit Ex. 4, ADR at the Department of Justice)(Russell, Beverly) (Entered: 03/20/2013)
163 TRANSCRIPT OF PROCEEDINGS before Judge Richard J. Leon held on 3/1/13; Date of Issuance:3/22/13. Court Reporter/Transcriber Patty Gels, Telephone number 202-3543236, Court Reporter Email Address : Patty_Gels@dcd.uscourts.gov.<P></P>For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 4/12/2013. Redacted Transcript Deadline set for 4/22/2013. Release of Transcript Restriction set for 6/20/2013.(Gels, Patty) (Entered: 03/22/2013)
Set/Reset Hearings: Fairness Hearing set for 5/7/2013 11:30 AM in Courtroom 18 before Judge Richard J. Leon. (kc ) (Entered: 04/03/2013)
164 NOTICE of Appearance by Lindsey Bishop Lang on behalf of All Plaintiffs (Lang, Lindsey) (Entered: 04/17/2013)
165 SUPPLEMENTAL MEMORANDUM by JAMES GRALUND, BRUCE C. HUBBARD, JUDY M. SCHULD, GRACE J. SHIRK-EMMONS, LUCY I. STIEGLITZ, DANIEL TIGHE, SUSAN TIGHE, GAIL WALKER, GEORGE R. WESTENBERGER, DIANE WHITENER, ARLEN WHITSIT. (Attachments: # 1 Exhibit Exhibits A-C)(Duraiswamy, Shankar) Modiﬁed event title on 4/26/2013 (znmw, ). (Entered: 04/25/2013)
166 ERRATA to Supplemental Brief in Support of Approval of Global Settlement Agreement by BRUCE C. HUBBARD 165 Memorandum, ﬁled by JAMES GRALUND, LUCY I. STIEGLITZ, ARLEN WHITSIT, GRACE J. SHIRK-EMMONS, DIANE WHITENER, JUDY M. SCHULD, BRUCE C. HUBBARD, DANIEL TIGHE, GEORGE R. WESTENBERGER, GAIL WALKER, SUSAN TIGHE. (Duraiswamy, Shankar) (Entered: 04/29/2013)
Minute Entry for proceedings held before Judge Richard J. Leon: Fairness Hearing held on 5/7/2013. (Court Reporter Patty Gels.) (kc ) (Entered: 05/07/2013)
167 MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 7/31/2013. (kc ) (Entered: 07/31/2013)
168 ORDER, WHEREAS the parties have entered into a Global Settlement Agreement("Agreement"), signed by all parties and ﬁled with the Court on October 24, 2011, [140-2]; and WHEREAS, the Court entered an Order dated October 19, 2013, 148 , conditionally certifying the Proposed Settlement Classes, appointing the Class Representatives and Class Counsel, approving the Class Notice, granting preliminary approval of the Agreement, and scheduling a Fairness Hearing (the "Preliminary Approval Order"); and WHEREAS, the Court held a Fairness Hearing, over multiple days, to determine whether to grant ﬁnal approval of the Agreement. NOW THEREFORE, for the reasons stated in the accompanying Memorandum Opinion, it, is, this 31st day of July, 2013, hereby ORDERED as follows: 1. Final Class Certiﬁcation.

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The Proposed Settlement Classes that the Court conditionally certiﬁed in its Preliminary Order are hereby ﬁnally certiﬁed for settlement purposes under Fed. R. Civ. P.23 (b)(2) and (3). The Damages Settlement Class and Injunctive Settlement Class are comprised as stated in the Prelimianry Approval Order. 2. Adequacy of Representation. The Court fully and ﬁnally conﬁrms the appointment of the Class Representatives and Class Counsel as stated in its Preliminary Approval Order. The Court ﬁnds that the Class Representatives and Class Counsel have fully and adequately represented the Proposed Settlement Classes for purposes of entering into and implementing the Agreement and have satisﬁed the requirements of Fed. R. Civ. P.23(a)(4). 3. Class Notice. The Court ﬁnds that the Class Notice, in accordance with the terms of the Agreement and this Court's Preliminary Approval Order, constituted the best practicable notice to Class Members under the Circumstances of this Action; was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of this action, their right to request exclusion, their right to object to any aspect of the proposed settlement, and their right to appear at the Fairness Hearing; was reasonable and constituted due, adequate, and sufﬁcient notice to all persons entitled to such notice; and fully satisﬁed the requirements of the Federal Rules of Civil Procedure, the United States Constitution, the Rules of this Court, and other applicable laws. 4. Final Settlement Approval. The terms and provisions of the Agreement, except the provisions relating to attorneys' fees and expenses, are fully and ﬁnally approved as fair, reasonable, and adequate as to, and in the best interests of, the Plaintiffs and the Class Members, and in full compliance with all applicable requirements of the Federal Rules of Civil Procedure, The United States Constitution, and any other applicable law. The Court overrules all Class Members' objections and approves the Agreement, except the provisions relating to attorneys' fees and expenses, as fair, adequate, and reasonable. The Parties and Class Members are hereby directed to implement and consummate the Settlement Agreement, except as this Order speciﬁes as to attorneys fees and expenses. 5. Class Representatives' Fees. The Court approves payments to the eleven Class Representatives of $10,000 each. 6. Attorneys' Fees and Expenses. The Court awards $910,000 in attorneys fees and $114,216.69 in expenses to Class Counsel. 7. Retention of Jurisdiction. Without affecting the ﬁnality of this Order and Judgment, this Court expressly retains exclusive and continuing jurisdiction over the Parties, including the Settlement Classes, and all matters relating to the administration, consummation, validty, enforcement, and interpretation of the Agreement and this Final Order and Judgment. 8. No Admissions. Neither this Final Order and Judgment nor the Agreement is an admission or concession by or against defendant as to the validity of any claim or any actual or potential fault, wrongdoing, or liabilty whatsoever. 9. Dismissal of action. This Action, including all individual and class claims, is hereby dismissed on the merits and with prejudice against plaintiffs and all other class members. 10. Final Judgment. This is a Final Judgment disposing of all claims and all parties. SO ORDERED. Signed by Judge Richard J. Leon on 7/31/2013. (see order) (kc ) (Entered: 07/31/2013)
169 NOTICE OF SUBSTITUTION OF COUNSEL by Wynne Patrick Kelly on behalf of PATRICK R. DONAHOE Substituting for attorney Beverly M. Russell (Kelly, Wynne) (Entered: 09/08/2016)
170 NOTICE of Voluntary Dismissal by PATRICK R. DONAHOE (Kelly, Wynne) (Entered: 09/08/2016)

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