Arnold v. Postmaster General, Civ. A. No. 85-2571

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: CHARLES R. RICHEY
• Citation: 667 F. Supp. 6
• Decision Date: 10 November 1987
• Docket Number: Civ. A. No. 85-2571,86-2291.
• Parties: Clyde J. ARNOLD, Jr., et al., Plaintiffs, v. POSTMASTER GENERAL, Defendant. Charles Ray NETHERTON, et al., Plaintiffs, v. POSTMASTER GENERAL, Defendant.

667 F. Supp. 6

Clyde J. ARNOLD, Jr., et al., Plaintiffs,
v.
POSTMASTER GENERAL, Defendant.
Charles Ray NETHERTON, et al., Plaintiffs,
v.
POSTMASTER GENERAL, Defendant.

Civ. A. Nos. 85-2571, 86-2291.

United States District Court, District of Columbia.

August 13, 1987.

As Amended August 20 and November 10, 1987.

667 F. Supp. 7

COPYRIGHT MATERIAL OMITTED

667 F. Supp. 8

Joseph E. Kolick, Jr. and Cyril V. Smith of Dickstein, Shapiro & Morin, Washington, D.C., for plaintiffs

Stuart H. Newberger, Asst. U.S. Atty., Anthony W. DuComb, Sr. Atty., and Diana E. Johnson of the U.S. Postal Service, Office of Labor Law, Washington, D.C., for defendant.

CHARLES R. RICHEY, District Judge.

 TABLE OF CONTENTS
                I. INTRODUCTION AND BACKGROUND 9
                 A. The United States Postal Inspection Service 10
                 B. The United States Postal Inspection Service's Career Path
                 Policy 11
                II. PROCEDURAL HISTORY 12
                III. PROCEDURAL RULINGS 13
                 A. Class Certification Is Appropriate Under Rule 23(b)(2) and
                 Local Rule 203. 13
                 1. Both Parties Sought Class Certification. 13
                 2. By Consent, the Parties Agreed to Tentative Class Certification
                 Under Rule 23(b)(2) to Include Postal Inspectors Affected
                 by the Career Path Policy. 14
                 3. Plaintiffs Only Challenge the Senior-First Rule of the
                 Career Path Policy; Therefore, the Court Will Redefine the
                 Class to Comprise Only Postal Inspectors Affected by the Senior-First
                 Rule Because Only They Have Standing to Challenge
                 the Rule. 14
                 4. Rule 23 Applies to Class Actions Against the Federal
                 Government, Rather Than the ADEA's Opt-In Requirement
                 Applicable to Private Employers. 15
                 5. Class Certification Is Appropriate Under Rule 23 and Local
                 Rule 203. 15
                 B. Although Most of the Named Plaintiffs Met the ADEA's Notice
                 Requirements, Defendant's Motion to Dismiss Brady and Rittiner
                 as Class Representatives Must be Granted Because They
                 Did Not Satisfy the Notice Requirements; Brady and Rittiner
                 May, However, be Eligible for Relief as Members of the Protected
                 Class and, Therefore, Defendant's Motion to Dismiss Brady and
                 Rittiner as Class Members Is Denied. 16
                 C. All of the Named Plaintiffs Have Standing to Challenge the
                 Senor-First Rule as a Violation of the ADEA. 17
                IV. WHEN PLAINTIFFS "ACCEPTED" TRANSFERS UNDER THE
                 CPP, THEY DID NOT WAIVE THEIR RIGHTS TO CHALLENGE
                 THE SENIOR-FIRST RULE AS A VIOLATION OF THE ADEA. 18
                V. THE SENIOR-FIRST RULE OF THE CAREER PATH POLICY
                 VIOLATES THE AGE DISCRIMINATION IN EMPLOYMENT ACT
                 UNDER BOTH A THEORY OF DISPARATE IMPACT AND DISPARATE
                 TREATMENT. 18
                 A. The Senior-First Rule Has A DISPARATE IMPACT on Postal
                 Inspectors 40 Years of Age and Older. 19
                 1. The Plaintiffs Have Established That the Senior-First
                 Rule Falls More Harshly on Postal Inspectors 40 Years of
                 Age and Over. 19
                 a. The Senior-First Rule Is a Discriminatory Employment
                 Policy. 19
                 b. Defendant's Senior-First Rule Has a Statistically Significant
                 DISPARATE IMPACT on Plaintiffs. 20
                 i. The Relevant Time Period Is From December 1
                 1980 to September 1, 1985. 20
                

667 F. Supp. 9
                 ii. The Effect of the Senior-First Rule Is Most Accurately
                 Reflected by Plaintiffs' Statistics. 20
                 iii. The Statistics Establishing DISPARATE IMPACT. 22
                2. No Valid Business Necessity Justifies the Senior-First
                Rule. 23
                3. Even if Defendant Had a Business Necessity to Transfer
                the Most Senior Level 23 Postal Inspectors, a Non-Discriminatory
                Alternative Was Available. 25
                B. The Senior-First Rule Constitutes DISPARATE TREATMENT
                of Plaintiffs Because Defendant's Use the Rule as a Pretext to
                Discriminate Against Plaintiffs Because of Their Age. 26
                 1. Plaintiffs' Statistical and Antedotal Evidence Raises an
                 Inference of Discrimination Against Postal Inspectors 40
                 Years of Age and Over Because of Their Age. 27
                 2. Defendant Has Not Sustained Its Burden of Persuading
                 Producing Evidence of a Legitimate, Non-Discriminatory
                 Business Reason for the Senior-First Rule. 27
                 3. Plaintiffs' Have Proven by a Preponderance of the Evidence
                 That Defendant's Reason for the Senior-First Rule Was
                 But a Pretext for Its Discriminatory Animus. 27
                 4. Defendant Knew the Senior-First Rule Violated the
                 ADEA and, Therefore, Defendant's Conduct Was Willful. 28
                VI. CONCLUSION 28
                

I. INTRODUCTION AND BACKGROUND¹

This class action arises out of plaintiffs' challenge to the senior-first rule ("Rule") of the United States Postal Service's Career Path Policy ("CPP" or "Policy"). Pursuant to the senior-first rule, the Postal Service directs the most senior and oldest level 23 postal inspectors from the cities, towns and hamlets across the land to transfer to New York City and thirteen other major metropolitan areas.² Directing the most senior level 23 postal inspectors to transfer to major metropolitan areas adversely affects the older postal inspectors because the cost of living and housing in New York City and the other thirteen major metropolitan areas is significantly higher than in non-major metropolitan areas. Defendant knew that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, prohibits them from implementing policies, such as the Career Path Policy and its senior-first rule, that discriminate against persons because of their age. Nevertheless, defendant began to systematically transfer the most senior and oldest level 23 postal inspectors to major metropolitan areas on December 1, 1980.

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

Plaintiffs' second claim is that the senior-first rule results in the disparate treatment of postal inspectors 40 years of age and above. Plaintiffs' statistical and antedotal testimony clearly raises an inference of discrimination on the basis of age. Defendant fails to proffer a legitimate, nondiscriminatory

667 F. Supp. 10

business reason for reassigning the most senior and older level 23 postal inspectors to the largest and most expensive cities. But, even if defendant's reason was legitimate and nondiscriminatory, plaintiffs proved that defendant's reason was a pretext to hide its discriminatory animus toward older postal inspectors.

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

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

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

A. The United States Postal Inspection Service

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

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

Except for the period between 1970 and 1984, postal inspectors have been recruited from within the Postal Service, and after 1984 have been required to have a college degree. See DX 7. Postal Inspection Service regulations require postal inspectors to relocate when lawfully and legitimately dictated by the needs of the Service. See DX 10. To be hired, each postal inspector must state that he or she is willing to relocate pursuant to a lawful policy to anyplace in the continental United States, Puerto Rico, Alaska...