Pending Class Actions

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JANICE MUHAMMAD, et al., )
)
Plaintiffs, ))
vs. ) Case No. 04-0628-CV-W-ODS
)
JOHN E. POTTER, )
Postmaster General )
United States Postal Service, )
)
Defendant. )
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT AND TO STRIKE CLASS ALLEGATIONS Pending is Defendant's Motion to Dismiss Second Amended Complaint and to Strike Class Allegations (Doc. # 38). For the following reasons, Defendant's motion is granted in part and denied in part.

I. BACKGROUND
Plaintiffs filed the above-captioned matter on July 16, 2004, against Defendant
John E. Potter, Postmaster General of the United States Postal Service. Plaintiffs filed an Amended Complaint on July 27, 2004, alleging that they are "disabled or perceived as disabled," and Defendant has maintained policies, practices or customs of disability discrimination that

(1) prevent employees who are disabled or perceived as disabled from applying for, bidding on or assuming job positions other than those previously assigned to them;
(2) deny such employees promotional opportunities; and (3) deny
such employees pay advancement opportunities. On November 8, 2004, Defendant filed a motion to dismiss Plaintiff's Amended Complaint. The Court denied Defendant's Case 4:04-cv-00628-ODS Document 50 Filed 08/16/2005 Page 1 of 62 motion to dismiss and granted Plaintiffs leave to file a new complaint.

On May 9, 2005, Plaintiffs filed a Second Amended Complaint. Shortly thereafter, Defendant filed a Second Motion to Dismiss arguing that, pursuant to Rules 12(b)(1), 12(b)(6) and 23(d)(4) of the Federal Rules of Civil Procedure, (1) Plaintiff Muhammad lacks standing and no other Plaintiff has exhausted administrative remedies;
(2) the Second Amended Complaint fails to properly allege disability;
(3) the Second Amended Complaint does not resolve problems associated with the statute of limitations and non-bidding claims; and (4) the class allegations should be stricken.

II. STANDARDS
A. Rule 12(b)(1)
Dismissal for lack of subject matter jurisdiction is appropriate if the issue before
the court is whether the plaintiff has failed to satisfy a threshold jurisdictional
requirement. Trimble v. Asarco, Inc., 232 F.3d 946, 955 n.9 (8th Cir. 2000). In order to properly dismiss a case for lack of subject matter jurisdiction, the complaint must be successfully challenged on the factual truthfulness of its averments or on its face. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a factual 12(b)(1) motion, the trial court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn v. U.S., 918 F.2d 724, 730 (8th Cir. 1990). B. Rule 12(b)(6) A motion to dismiss for failure to state a claim should be granted when it appears that "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on a motion to dismiss, the Court is required to view the facts alleged in the complaint in the light most favorable to the Plaintiff. Case 4:04-cv-00628-ODS Document 50 Filed 08/16/2005 Page 2 of 63

III. DISCUSSION
A. Plaintiffs' Standing Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendant contends that Plaintiffs' Second Amended Complaint should be dismissed because (1) Plaintiff Janice Muhammad ("Muhammad") lacks standing since she previously signed a settlement agreement, and (2) no other Plaintiff has exhausted his or her administrative remedies, including the newly added Plaintiff, Yvonne Grant-Howlett ("Grant-Howlett").

(1) Muhammad's Standing
Muhammad executed a settlement agreement with Defendant on September 30, 2003, for the withdrawal of her grievances against the United States Post Office extant at that time. Muhammad agreed she would not relitigate any employment claims prior to the date of the agreement in any forum. According to the Complaint of Discrimination to which the settlement relates, Plaintiff complained of four acts of discrimination that occurred in 2001. This case pertains to a discrimination complaint that was filed with Defendant in November 2003, and, as described infra, only encompasses acts of discrimination that occurred within the forty-five days preceding the submission of the charge of discrimination. As such, Plaintiff is not relitigating any of the claims for which she executed a settlement agreement in 2003 and, therefore, does not lack standing to present the claims in this matter.

(2) Other Plaintiffs' Failure to Exhaust Administrative Remedies
Second, Defendant argues that the other Plaintiffs have failed to exhaust their
administrative remedies. Only one plaintiff in a putative class action has to timely file an EEOC complaint so long as the individual claims of the filing and non-filing plaintiffs must arise out of similar discriminatory treatment in the same time frame. Thomure v. Phillips Furniture Co., 30 F.3d 1020, 1027 (8th Cir. 1994); see also Carter v. West Pub. Case 4:04-cv-00628-ODS Document 50 Filed 08/16/2005 Page 3 of 64

Co., 225 F.3d 1258, 1263 (11th Cir. 2000); EEOC v. Wilson Metal Casket Co., 24 F.3d
836, 839-40 (4th Cir. 1994). Because it is undisputed that Muhammad has exhausted her administrative remedies and the claims of the other Plaintiffs are similar in substance and time to hers, it does not matter that the other Plaintiffs, included the newly-added Plaintiff Grant-Howlett, have not exhausted their administrative remedies. For this reason, Defendant's Motion to Dismiss is denied with regard to the issue of standing.

B. Allegations Regarding Disability
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant
contends that the Second Amended Complaint should be dismissed because it fails to properly allege disability. A complaint must set forth, among other things, a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To establish a claim under the Rehabilitation Act of 1973, the plaintiff must establish:

(1) he or she is a qualified individual with a disability;
(2) he or she was denied
the benefits of a program or activity of a public entity receiving federal funds; and
(3) he or she was discriminated against on the basis of his disability. M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 981-82 (8th Cir. 2003) (citing Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir. 1999)). Here, Plaintiffs allege that they are individuals who are disabled within the meaning of the Rehabilitation Act in that they have a record of a physical or mental impairment that substantially limits one or more of their major life activities and/or they were regarded as having a disability by Defendant. As a result of being disabled or being perceived as disabled, Plaintiffs allege that Defendant treated them differently than similarly situated non-disabled
employees. These allegations state a claim under the Rehabilitation Act for which Plaintiffs may be entitled to relief. Therefore, Defendant's Motion to Dismiss for failure to state a claim is denied. Case 4:04-cv-00628-ODS Document 50 Filed 08/16/2005 Page 4 of 65

C. Statute of Limitations
Defendant argues that the Court should dismiss those claims that arise more
than forty-five days prior to Plaintiffs' contact with the Equal Employment Opportunity ("EEO") Counselor on or about November 12, 2003. Pursuant to 29 C.F.R. § 1614.105, Plaintiffs cannot recover for claims more than forty-five days before their initial EEO contact. Plaintiffs contend that they are asserting a continuing violation of the Rehabilitation Act and seek to recover back to January 1, 1999. However, Plaintiffs' claims concern discrete acts of discrimination (e.g., failure to award bids, denial of promotions and or denial of salary increases) pursuant to an allegedly discriminatory policy or practice. The Supreme Court has limited the continuing violation doctrine and has held that discrete acts such as those alleged by the plaintiffs in this case are not
actionable if time barred even if they are related to the timely filed charges. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 106-07 (2002); see also Tademe v. Saint Cloud State Univ., 328 F.3d 982, 987-89 (8th Cir. 2003). Simply put, each discrete act starts a new time line for filing a discriminatory charge. Thus, Plaintiffs' claims of alleged discrimination that occurred more than forty-five days before the initial EEO contact are time barred, and Defendant's Motion to Dismiss is granted with regard to these claims.

D. Non-Bidding Claims
Defendant argues that Plaintiffs' claims regarding promotions and pay
advancement should be dismissed because Plaintiffs only exhausted their
administrative remedies with regard to the bidding claims. The Eighth Circuit has found that administrative complaints are to be construed liberally and a plaintiff "may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge." Stuart v. General Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000) (quoting Nichols v. Am. Nat'l Ins. Co., 154 F.3d 875, 886-87 (8th Cir. 1998)). "The breadth of the civil suit is, therefore, as broad as the Case 4:04-cv-00628-ODS Document 50 Filed 08/16/2005 Page 5 of 66 scope of any investigation that reasonably could have been expected to result from the initial charge of discrimination." Id. (citations omitted). Here, Plaintiffs' allegations of failure to promote and lack of pay advancement grow out of and are reasonably related
to the alleged disparate treatment in the bidding process. For this reason, Defendant's Motion to Dismiss the non-bidding claims is denied.

E. Class Allegations
Finally, Defendant contends that the class allegations should be stricken
pursuant to Rule 23(d)(4) of the Federal Rules of Civil Procedure. As the parties are currently in the process of conducting discovery on the issue of class certification, this argument is premature and is denied without prejudice.

IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss Plaintiffs' Second
Amended Complaint is granted with regard to Plaintiffs' claims that occurred before the forty-five day period preceding Plaintiffs' EEO contact and denied in all other respects. IT IS SO ORDERED.
DATE: August 16, 2005 /s/ Ortrie D. Smith
ORTRIE D. SMITH, JUDGE
UNITED STATES DISTRICT COURT
Case 4:04-cv-00628-ODS Document 50 Filed 08/16/2005 Page 6 of 6

CLASS CERTIFICATION DECISION IN THE
CLASS EMPLOYMENT DISCRIMINATION COMPLAINT OF EDMOND C . WALKER
VERSUS JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES
FILE NUMBER
320-A2-8390X
CC-800-0359-03
CLASS COUNSEL
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Denver District Office
CLASS AGENT
Edmond C . Walker
AGENCY
United State Postal Service
AGENCY COUNSEL
Kevin Calamoneri
David B . Ellis
USPS
600 17th Street, Suite 950
Dominion Plaza South
Denver, CO 80202-3333
COMPLAINT
Class Complaint of Disability
Discrimination
ADMINISTRATIVE JUDGE
John Mosby
Marilyn Cain Gordon
621 17 th Street #925
Denver, CO 80293
Dickie Montemayor
Equal Employment Opportunity
Commission
Denver District Office
303 E . 17th Ave ., Suite #510
Denver, Colorado 80203

I . INTRODUCTION
On May 29, 2002, Complainant, who was then pursuing an
individual complaint, filed a class complaint alleging that he
was discriminated against on the basis of his disability . On
October 17, 2002, Complainant's hearing request on the individual
complaint was dismissed to be held in abeyance pending
adjudication of the class issues . The claim was thereafter
processed as a class complaint . Complainant alleged that he,
along with others, had been the victim of unlawful discrimination
on the basis of disability . He further alleged that the United
States Postal Service maintained a nationwide policy of
systematically discriminating against individuals who were placed
in permanent rehabilitation positions by 1)restricting
individuals to limited work hours ; 2)failing to engage in the
interactive process ; 3)failing to allow the employees the number
of work hours deemed appropriate by the individual and/or his or
her physician ; and 4)failing to allow disabled individuals the
opportunity to use assistive devices . On September 19, 2002, the
Agency forwarded the file to the Denver District Office of the
EEOC for an Administrative Judge's decision regarding acceptance
of the matter as a class complaint. On March 5, 2003, Complainant withdrew two allegations "with prejudice" from the pending class complaint including the
allegation that the Agency failed to engage in the interactive 2 process and the allegation that the Agency failed to allow
individuals to use assistive devices.

II . ISSUE
Whether or not Edmond C . Walker's complaint satisfies the
requirements of 29 C .F .R . §1614 .204 for acceptance as a class
complaint?

III . PROCEDURAL BACKGROUND
Any discussion regarding class certification in this case must necessarily begin with a discussion of the procedural history of not only this class complaint, but another previously certified class complaint . The Commission previously certified another class complaint involving the same and/or a similar class of persons, i .e ., disabled individuals who were categorized as "permanent rehabilitation employees ." In Glover v. USPS, EEOC Request No . 05A10711 (August 16, 2001), the Commission affirmed its prior certification of a class complaint involving the Agency's alleged nationwide policy of denying promotional and/or advancement opportunities to disabled permanent rehabilitation employees . See also Glover v . USPS, EEOC Appeal No. 01A04428 (April 23, 2001) . After certification, and while the Glover case was in the merits phase of processing, Glover filed a motion to add Dean Albrecht as a cc-agent . Mr . Albrecht was added and the case was re-captioned as Glover/Albrecht. On or about March 9, 2002, Glover again moved to amend the
Glover-Albrecht case to add Edmond C . Walker as a co-class agent. In the motion, it was asserted that Walker received class notice and was a class member of Glover/Albrecht . The motion specifically set forth that, "Mr . Walker's issues include but are not limited to failure of the Agency to engage in the
"interactive process" and "denial of opportunities to work more than a set number of hours ." (See Complainant's Motion dated March 9, 2002) . The Agency opposed the motion, argued that Walker was not a "class member" of Glover, rather a "potential class member," and also argued that Walker's issues were not "typical" of the issues defined in the GloverlAlbrect class
Glover filed a motion to Walker as a co-class agent
were attempting to resolve and the settlement discussions were "premised
as framed before the Commission ." (See Complainant's Motion dated May 22, 2002) . Glover also noted that if the GloverlAlbrecht case was to go forward and not settle, Complainants would re-file the motion to add Edmond C . Walker as a co-agent . The Walker case was processed separately and the
parties in GloverlAlbrecht ultimately entered into a settlement agreement resolving the matters pending in Glover/Albrecht .

On or about September 19, 2002, the Agency forwarded the Walker class complaint to EEOC for a decision to accept or dismiss action . On or about May 22, 2002, withdraw the request to add Edmond C . without prejudice because the parties GloverlAlbrecht upon the issues the class complaint . On November 12, 2002, Complainant filed a motion requesting that the Agency be directed to investigate the class complaint and/or submit information relevant to the
complaint . The Agency on January 31, 2003, filed its response in opposition to Complainant's motion . On February 21, 2003, Complainant filed its reply to the Agency's response. On April 15, 2003, the Agency was ordered to identify pending cases . On May 15, 2003, the Agency moved to dismiss and requested to vacate the order directing the Agency to identify pending cases . Also, on May 15, 2003, the Agency filed a request for stay ; the Agency requested that the order to identify pending cases be stayed pending a ruling on the motion to dismiss . On May 22, 2003, Complainant filed its response in opposition to the Agency's motion to dismiss and request to vacate the order directing Agency
to identify pending cases . Complainant also on May 22, 2003 filed its response in opposition to the Agency's request for stay. On June 2, 2003, the Agency filed its reply to Complainant's response in opposition to the Agency's motion to dismiss and request to vacate order directing the Agency to identify pending
cases . On June 10, 2003, Complainant submitted supplemental authorities in support of his opposition to the Agency's motion to dismiss . On June 20, 2003, the Agency submitted its sur-reply to Complainant's submission of supplemental authorities. On October 23, 2003, 1 issued an order denying the Agency's motion to dismiss and motion to stay . On November 21, 2003, the
Agency filed a motion for reconsideration of my order denying the motion to vacate the order directing the Agency to identify pending cases . On November 28, 2003, Complainant filed his response in opposition to the Agency's motion for reconsideration.

On December 8, 2003, Complainant filed a motion requesting class certification pursuant to 29 C .F .R . Section 1614 .204. The Agency on December 8, 2003, filed its opposition to class certification. On December 10, 2003, the Agency filed its reply to Complainant's response in opposition to the Agency's previously filed November 21, 2003, motion for reconsideration . On December
11, 2003, Complainant filed its sur-response to Agency's response in opposition to motion for reconsideration . On December 15, 2003, Complainant filed a response to the Agency opposition to class certification and request for an adverse inference . On December 12, 2003, I issued an order denying the Agency's motion for reconsideration of the order directing the Agency to identify
pending cases. On December 18, 2003, the Agency filed a notice informing the
parties that the Agency would file an interlocutory appeal regarding the December 12, 2003, order. On December 18, 2003, Complainant filed a response to the Agency's December 18, 2003, notice . On January 13, 2004, the Agency filed a request for an extension of time to comply with the December 12, 2003, order . On January 14, 2004, Complainant filed a response to the Agency's request for extension of time . On January 22, 2004, the Agency filed an interlocutory appeal with EEOC's Office of Federal Operations . On January 23, 2004, the Agency filed an unopposed motion for protective order . On January 23, 2004, the Agency's motion for protective order was granted . On January 26, 2004, Complainant filed his response in opposition to the Agency's interlocutory appeal . On February 4, 2004, the Agency filed a
motion to stay . On February 18, 2004, Complainant filed his response in opposition to the Agency's request for stay . On March 3, 2004, I denied the Agency's request for stay . On March 5 2004, the Agency filed with EEOC's Office of Federal Operations its reply to Complainant's Opposition to the Agency's interlocutory appeal . On March 11, 2004, the Agency filed with
EEOC's Office of Federal Operations a motion for stay.

On March 19, 2004, Robert Barnhart, the Director of Compliance and Control Division of EEOC's Office of Federal operations, declined to accept jurisdiction over the interlocutory appeal indicating that "EEOC Regugations found at 29 C .F .R . Section 1614 do not provide for the filing of an interlocutory appeal under these circumstances ." On March 25, 2004, Complainant filed a motion regarding the Agency abeyance letters and a request for a forthwith hearing . On or about March 30, 2004, Complainant filed a motion for the issuance of an order to show cause and motion for attorneys fees' and costs . This motion was predicated upon the Complainant's assertion that sanctions should be imposed upon the Agency because it lacked legal authority to file an
interlocutory appeal in the matter. On March 31, 2004, Complainant submitted what was selfdescribed as an "Errata" to Complainant Walker's motion requesting class certification . This "Errata" sought to delete the word
"permanent" from any definition of the proposed class . This motion to amend the definition of the proposed class was met with opposition from the Agency .
On April 2, 2004, the Agency filed its response to the Complainant's motion for sanctions . On April 5, 2004, the Agency filed its response to Complainant's motion regarding letters of abeyance and request for forthwith hearing . On April 8, 2004, the Agency filed its initial response to Complainant's "Errata ."
In its response, the Agency argued that the proposed amendment would substantively expand the class and should be denied . On June 15, 2004, I issued an order denying Complainant's motion and request for the issuance of a forthwith order. On August 10, 2004, I issued an order granting in part and denying in part Complainant's motion to alter the class definition of the proposed class . I thereafter provided the parties with the opportunity to
conduct discovery on the limited issued raised by Complainant's assertion that the Agency changed the manner in which "permanent rehabilitation employees" were categorized . After the completion of discovery, both the Agency and Complainant filed briefs in support of and in opposition to amending the definition of the proposed class. On March 1, 2005, I issued an order defining the proposed class to include all those permanent rehabilitation employees who were categorized with employee status codes of LDC 69, and/or RD or RC . I also denied Complainant's request to include within the
definition those employees who had reached maximum medical
improvement, but who had not been made "permanent rehabilitation
employees ."

IV . ANALYSIS AND CONCLUSIONS
The controlling regulation, 29 C .F .R . § 1614 .204 specifies that the Administrative Judge may reject certification of the complaint, or a portion thereof if it does not meet the prerequisites of 29 C .F .R . § 1614 .204 . 29 C .F .R . § 1614 .204(a)(2) provides as follows :

A "class complaint" is a written complaint of discrimination
filed on behalf of a class by the agent of the class alleging
that :
(1) The class is so numerous that a consolidated complaint of the members of the class is impractical ;
(2) There are questions of fact common to the class ;
(3) The claims of the agent of the class are typical of the claims of the class ;
(4) The agent of the class, or his/her representative, if any, will fairly and adequately protect the interests of the class .

After reviewing the formal complaint, the other documents contained in the materials provided by the Agency, and the briefs of the parties, I find that certification of this matter as a class complaint is appropriate . It is clear that rejection is proper if any one criterion of a class complaint is not met . Baldwin v . Frank, Postmaster General, EEOC No . 01890416 (June 6, 1989) ; Tillman v . McGovern, Secretary of the Air Force, EEOC No . 01890695 (April 17, 1989) ; McNeal v . Marsh, Secretary of the Army, EEOC No . 01890250 (December 1, 1989) ; General Telephone Co . of the Southwest v . Falcon, 457 U .S . 147 (1982) . As more fully set forth below, I find that all of the necessary requirements for certification have been met . In so finding, it is important to
note that the Commission in Glover v . USPS, EEOC Request No . 05A10711 (April 23, 2001), addressed similar questions relating to a similar class of employees and found in that case that certification was proper . Applying the reasoning and rationale set forth by the Commission in Glover, it is clear that a similar result should follow in this case .

A . COMMONALITY
A finding of commonality requires a determination that there are questions of fact common to the class .' It is well established that the commonality requirement of class certification does not require that all questions raised by the dispute be common . Rather, it is sufficient if only some questions are common . See in re Prudential Ins . Co ., 148 F .3d 283 (3ra Cir . 1998) . In Beckman v . CBS, 192 F .R .D . 608, 613 (D . Minn . 2000), the court held, "the rule does not require that every question of law or fact be common to every member of the class, and may be satisfied, for example where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated ." See also 7A Wright, Miller, and Kane, Federal Practice and Procedure, 3d Civil § 1763 p .215 (2005) . Commonality has generally been characterized by Federal courts as a "low hurdle that is easily surmounted ." See Duhaime v . John Hancock Mutual Life Insurance Co ., 177 F .R .D . 54 (D . Mass . 1997) . I find that common questions of law and fact are readily apparent . The common question is whether the Agency, through its alleged nationwide policy and/or practice, discriminated against disabled employees who were in permanent rehabilitation positions (identified by employee status codes of LDC 69 and/or RD or RC), FRCP 23 requires that common questions of law or fact be
present . The Commission's regulations however, refer only to common questions of fact . Compare FRCP 23 with 29 C .F .R . Section 1614 .204 (a) (2) (ii) . by restricting their work hours and/or denying them overtime . The
existence of an alleged policy and/or practice applied to the members of the class as a whole satisfies the requirement regarding the existence of common questions of law and fact . See East Texas Motor Freight v . Rodriguez, 431 U .S . 395 (1977) . Furthermore, Complainant has alleged that the discriminatory acts were not isolated, insignificant or sporadic, but were of a
generalized nature and the standard operating procedure of the USPS . See International Brotherhood of Teamsters v . United States, 431 U .S . 324, 336 (1977) . In Conanan v . FDIC, EEOC Appeal No . 01952486 (January 13, 1998), the Commission held that in order to establish commonality there must be a showing that, there are underlying facts which might raise an
inference of a common question of pattern and practice through allegations of specific incidents of discrimination . This can be accomplished in a number of
ways including the submission of affidavits containing anecdotal testimony by other employees . . . . The Commission in Conanan also noted that, "commonality is established when a common thread of discrimination confronts all members of a class ."
Complainant submitted testimonial evidence from numerous employees from different geographically dispersed Agency facilities . Along with his own declaration, Complainant submitted declarations from Eugene Collins, of Denver, Colorado, Tracy Graham, of Northridge, California, Michael Tkalcevic, of
Cannonsburg, Pennsylvania, Jack Dempsey Baldwin Jr ., of El Paso,

12 Texas, Dennis Wayne Turner, of Denver, Colorado, Lori Fitzgerald, of Warren, Pennsylvania, Arnold J . Webler, of Hollywood, Florida, Donald Reed Jr ., of Southfield, Michigan, Jacqueline Carter, of Gorham, Maine, Raymee W. Berg, of Tustin, California, Luticia Alzina Hawthorne, of Newark, New Jersey, Nancy A . Palmer, of Billings, Montana, and Buddy L . Spaulding, of Arlington Texas .(Complainant's Motion Requesting Class Certification Ex . 1-15) . Each asserted that they were permanent rehabilitation employees and their work hours were restricted . Complainant also submitted letters from various locations referencing work hour restrictions . Letters were received from Barbara Jean Tucker of Carlise, South Carolina, Debbie Pennington of Vernon, Alabama, Jesus Sanchez of National City, California, John Russo of Jersey City, New Jersey, Thomas Myers of Defrance, Iowa, Haddie Benson Jr . of New Haven, Connecticut, Wandi Colvin of Hixon, Tennessee. (See Complainant's Motion Requesting Class Certification Ex .15-21) . I find the above declarations and anecdotal information from the geographically dispersed facilities sufficient to raise an inference of the operation of an overriding policy and/or practice . See Mastren v . USPS, EEOC Request No . 05930253 (October 27, 1993) . 2 Stated differently, it is clear that Complainant 2 This is not the first time the Commission has been presented with the question of alleged Agency practices and/or policies involving the restriction of work hours . In Rose v. USPS, EEOC Appeal No . 01994514 (May 31, 2002), an Agency Supervisor testified that the Agency had in place a "policy"

13 alleged that his work hours were restricted in that he was not allowed to work hours he allegedly was able to work and/or was denied overtime . (See Counselor's Final Interview Dated August 19, 2002) . Secondly, Complainant has alleged that there was a practice and/or policy of restricting work hours . It is clear that Complainant's allegations of a practice and/or policy are not mere conclusory allegations, but are, in fact, supported by the declarations and anecdotal evidence supplied by other employees . Complainant has identified a class of persons whom he alleges possess the same interests, and have allegedly suffered the same injury from the identified practice and/or policy such that the class claims will share common questions . In Spencer v . USDA, EEOC Appeal No . OlAO5280 (September 25, 2002), the Commission noted that, factors to consider in determining commonality are whether the practice at issue affects the whole class or which denied overtime to its employees on limited or light duty who could not perform all the duties of their job assignment . In that case the Commission stated, "we caution the Agency, however, that application of its "policy" of denying overtime to individuals who cannot perform all the duties of their job assignment may violate the Rehabilitation Act . An employer may not penalize an employee who is receiving a reasonable accommodation ." Similarly, in Bricker v . USPS, EEOC Appeal NO . 01934294 (June 29, 1994), a GMF manager asserted that the Agency's "policy" generally speaking is that "limited duty employees cannot perform all the duties that may be required on overtime due to their restrictions . Because of their limitations there is no overtime available for them ." In Houston v . USPS, EEOC Appeal No . 01871433 (January 18, 1989), the Commission found direct evidence of a "policy" dating back to 1984, that denied overtime to a limited duty rehabilitation employe. 14 only a few employees, the degree of local autonomy or centralized administration involved, and the uniformity of the membership of the class in terms of the likelihood that the members' treatment will involve
common questions of fact. Applying these factors to the allegations presented makes clear that common questions of fact are present . Complainant alleges,
that the practices in question affect the whole class, are part a centralized nationwide policy and/or practice that is discriminatory, and the work hour restrictions are not simply isolated events, but affect persons geographically dispersed throughout the country . Thus, I find that the class complaint satisfies the commonality requirement .

B . TYPICALITY
The Commission has recognized that in application commonality and typicality
often "indistinguishable ." OlAO4428 (April 23, 2001). Commission held,
prerequisites tend to merge and are See Glover v . USPS, EEOC Appeal No.
In Bowen v . Secretary, U.S . Department of Agriculture, EEOC Appeal No . 01920303(Dec . 11, 1992), the 1 5 of typicality requires that the class agent has suffered the same injury as other class members and possesses
substantially the same interest as other class members . Falcon at 156, quoting East Texas Motor Freight Systems v . Rodriguez, 431 U .S . 395 (1977) . Some overlap does xist between the commonality and typicality requirements . Harris v . Pan American World Airways, Inc . 74 F .R .D . 24 (N .D . Cal . 1977) . Appellant must show some nexus with the alleged class . Morrison v. Booth, 763 F . 2d 1366, 1371 (11th Cir . 1985) . Typicality exists where the class agent demonstrates some nexus with the claims of other class members, which can be shown by demonstrating the similarity between the (agent's) conditions of employment and those of other class members, and the alleged discrimination affecting the agent and that affecting the class . In Markham v . White, 171 F .R .D . 217 (N .D . Ill . 1997), the court noted that the requirement of typicality, may be satisfied even though varying fact patterns support the claims or defenses of individual class members or there is a disparity in the damages claimed by the representative parties and the other members of the class . Id . at 223 . In the instant class complaint typicality of the claims has been shown . Complainant does not complain about an isolated action only affecting him . Rather, he alleges that disabled employees were subjected to discriminatory practices pursuant to a nationwide policy that he alleges was applicable to him and other disabled employees around the country . To this end, Complainant,
an allegedly disabled permanent rehabilitation employee, provided the previously referenced declarations from employees dispersed around the nation, who also were allegedly disabled permanent rehabilitation employees, and allegedly suffered the same harm . The Commission has held that "typicality exists where the class agent demonstrates some "nexus" with the claims of the class such as similarity in the conditions of employment and similarity in the alleged discrimination affecting the agent and the class ." Michaels v . DOS, EEOC Appeal No . 07A20002 (March 17, 2003), Thompson v . USPS, EEOC Appeal No . OlAO3195 (March 22, 2001) . The "nexus" required to establish typicality is readily apparent from 16 the allegations presented . In addressing the questions of commonality and typicality it is important to emphasize that the Commission in Glover v. USPS, EEOC Request No . 05A10711 (April 23, 2001) addressed nearly identical issues of both commonality and typicality stating,

C . NUMEROSITY
it is clear that the class agent as a permanent rehabilitation employee with a disability, and the putative class, other permanent rehabilitation employees with disabilities, have the same interest and would suffer the same injury under Complainant's theory . We conclude . . . the purported class meets the prerequisites of commonality and typicality. The same reasoning is applicable in the present case. The Walker complaint alleges a nationwide class consisting of
all employees in "permanent rehabilitation" duty positions throughout the United States . The numerosity requirement of the class action regulation is, for all relevant purposes, identical to the requirement of Rule 23 of the Federal Rules of Civil Procedure . Therefore, decisions interpreting Rule 23 are important in analyzing and in interpreting the regulations contained in 29
C .F .R . § 1614 .204, et seq . The Commission has held that class complaints at the administrative level are subject to a lower standard of proof than that required of a Rule 23 litigant in Federal court . For example, in Tarrats v . FDIC, EEOC Appeal No . 01960433 (January 12, 1998), the Commission stated,
the Commission is mindful that a class agent has limited access to pre-certification discovery . Moten v . FERC, 1 7 EEOC Request No . 05912504 (December 30, 1991) . The sole means of evaluating a class complaint under EEOC regulations is a review of the complaint itself and the pre-investigatory record, as it exists . Thus, it would be unjust to hold appellant to the same standard of proof at the Administrative level as that required of a Rule 23 litigant in Federal court . See Mastren v . United States Postal Service, EEOC Request No . 05930253 (October 27, 1993) at note 10 .

It is clear that numerosity is a fluid concept and no exact number of class members is enough or not enough, in and of itself, to satisfy the numerosity requirements of Rule 23 Mastren v. USPS, EEOC Request No . 05930253 (October 27, 1993) ; 7A Wright & Miller, Federal Practice and Procedure : Civil 3rd § 1762 (2005) . The number of potential class members is a factor in determining whether the class is insufficiently numerous, as is the geographic
concentration, or lack thereof, of the potential class members . Harris v . USPS, EEOC Appeal No . 01994220 (March 14, 2002), Terrill v . Secretary, Department of the Army, EEOC Request No . 05830209 (September 9, 1985) . The numerosity requirement of Rule 23 does not contain any magic number on which numerosity would rest . The class however, must be "so numerous that a consolidated complaint of the members of the class (would be) impractical ."
I find the proposed class sufficiently numerous to render a consolidated complaint impractical . Although the Agency, in its pre-investigatory record counseling, did not identify the number of potential class members who fall within the proposed class, Complainant alleges a nationwide policy of discrimination . The 1 8 litigation in the related GloverlAlbrecht case revealed that there were approximately 26,000 permanent rehabilitation employees
potentially affected by the Agency's alleged discriminatory practices . The Agency, in its response to Complainant's motion to supplement the record, argued that it should not have to provide information relating to the number of employees in permanent rehabilitation positions because the identical information was provided to Complainant's counsel in GloverlAlbrecht . (See Agency otion Dated January 31, 2003) . I view this position of the Agency as an affirmation of the fact that this case involves the same general class of employees . As was found by the Commission in Glover, I find the class is sufficiently numerous to warrant certification.

D . ADEOUACY OF REPRESENTATION
The Commission has repeatedly held that competency of counsel is particularly important in order to insure adequate protection of the rights of class members . See Foster v. Department of the Navy, EEOC Appeal No . 05920483 (December 23, 1992) . Complainant retained the services of attorneys John Mosby and Marilyn Cain Gordon . The Commission previously found in Glover, that Mr . Mosby, an employment lawyer who has appeared before the Commission on numerous occasions, was qualified, experienced, and generall
able to conduct the proposed class litigation . Marilyn Cain Gordon also participated in the prosecution of the GloverlAlbrecht 1 9 matter and I find her to also be qualified, experienced, and generally able to conduct the proposed class litigation in this matter . Further, I find nothing to establish that the interests of the putative class representative are either in conflict with
and/or antagonistic to those whom he intends to represent .
Therefore, I find that Complainant has fully established adequacy
of representation sufficient to warrant class certification .

V . THE AGENCY'S REITERATED MOTION TO DISMISS
In its brief in opposition to class certification, the Agency reiterated a number of arguments previously raised in its motion to dismiss which were previously addressed in my Order of October 23, 2003, denying the Agency's motion to dismiss . For ease of reference for any reviewing official, I am incorporating within the body of this decision my previous analysis regarding these
issues.

3 A) THE ISSUES PRESENTED ARE NOT WITHIN THE EXCLUSIVE JURISDICTION
OF THE DEPARTMENT OF LABOR AND THEREFORE DISMISSAL PURSUANT TO 29
C .F .R . SECTI ON 1614 .017(A)(1) IS NOT PROPER . The Agency asserted that the issues presented should be dismissed because they are matters within the exclusive jurisdiction of the Department of Labor citing Meester v . Runyon
149 F .3d 855 (8 th Cir . 1998) . Complainant asserts that his claim 3 The references to pleadings contained within this section refer to those pleadings originally filed in support of and/or in opposition to the original motion to dismiss. 20 is not challenging the OWCP process rather what happens after
persons are placed within permanent rehabilitation duty positions . In Glover v . USPS, EEOC Appeal No . OlAO4428 (April 23, 2001), the Agency raised nearly the identical argument . In addressing the issue the Commission stated, the agency argues that the Commission lacks jurisdiction over the instant complaint because it involves issues related to the administration of the Department of Labor's Worker's Compensation Program (OWCP) . We disagree . The complaint asserts that the Agency systematically denies promotional opportunities to individuals with disabilities placed in permanent rehabilitation duty positions . Thus, the complaint alleges that such employees are subjected to discriminatory disparate treatment by the agency with respect to promotions . The complaint does not challenge the OWCP process and, thus, does not constitute a collateral attack on the OWCP process . Therefore, we
find that the complaint is properly within our jurisdiction under EEOC Regulations . See Padilla v . Department of the Air Force, EEOC Request No . 05940634 (June 27, 1995) ; Wagner v . United States Postal Service,
EEOC Appeal No . OlAO1553 (May 22, 2000) . The reasoning and rationale of Glover is equally applicable to the present case . In the instant case, Complainant's concerns are directed against actions taken by the USPS not the Department of Labor, do not challenge the OWCP process, and do not constitute a collateral attack on the OWCP process, therefore any dismissal
would be improper . Accordingly the Agency's motion to dismiss on the basis of the exclusivity of FECA is DENIED .

B) COMPLAINANT'S COMPLAINT WAS TIMELY FILED
The Agency asserted that Complainant's complaint should be
2 1 dismissed because it was untimely filed . I am not persuaded by
the Agency's argument in this regard . Prior to the time of Complainant's pending class complaint, he had an active individual complaint . EEOC MD-110 Chapter 8-2 provides, "[T]he one exception to the mandatory counseling prerequisite allows a Complainant to 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 . § 1614 .204(b) ."
MD-110 further clarifies in footnote one that, the term "moves" in this context means that the Complainant must make his or her intention to process
the complaint as a class action clear to the investigator if the complaint is still in the investigation phase of the process, to the administrative judge if the complaint is at the hearing phase of the process, or to the Agency if the investigation has been completed and the Complainant has not elected to proceed to a hearing . A complainant may make his/her intention clear through a letter, a formal motion, or any means that effectively informs the agency, investigator (if the matter is within the investigation phase of the process), or Administrative Judge of the Complainant's intent to pursue a class
action . Id . at n .l .

The Agency asserts that the claim is untimely because Complainant never filed a motion to amend his individual complaint to include the class complaint allegations . (See Agency Response at p . 15) . I am not persuaded by this argument . Complainant, in his initial attempt to receive counseling on the class issues, clearly stated, "I have a complaint pending that I want amended to include my new class complaint ." (See Agency Response Ex .l) . This clear request 22 meets the requirements of MD-110 as set forth above . As noted by
Complainant, "Walker's class complaint is timely filed because the issues in his case arise out of his individual complaint which was timely filed ."' (Complainant's Reply p . 10) .
The complaint is not untimely filed, thus the Agency's motion to dismiss, premised upon the alleged untimely filing of the class complaint, is hereby
DENIED .

C) COMPLAINANT DID NOT SETTLE OR WITHDRAW HIS PENDING INDIVIDUAL OR CLASS COMPLAINT .
The Agency argues that dismissal is appropriate because Complainant settled one of his individual complaints . The settlement agreement for the settled complaint clearly states that Complainant and the Agency entered into a settlement agreement aimed at settling only one of Complainant's pending EEO complaints . The applicable settlement agreement, on its face, states that, "counselee withdraws the present EEO complaint ." (Agency Response Ex . F) . Moreover, language typically found in the Agency settlement documents referencing the global release and withdrawal of claims is stricken on this particular document . (Agency Response Ex . F) . The only conclusion to be drawn from the record before me is that Complainant intended to only withdraw and/or settle the complaint identified under Agency number file
°Pursuant to MD-110 8-4C processing of Complainant's individual complaint has ceased pending adjudication of the class issue . 23 4E-800-0147-00 and not any others . There is no evidence in the record from which to conclude that the same claim that is pending has been decided by the Agency and/or the Commission . Therefore, I find that dismissal pursuant to 29 C .F .R . Section 1614 .107(a)(1) is not proper and the Agency's motion to dismiss premised upon 1614 .107(a)(1) is hereby DENIED .

D) COMPLAINANT HAS STANDING
The Agency asserted that Complainant's complaint should be dismissed because Complainant has no standing to sue . "Standing" in the U .S . Constitutional context mandates the existence of a case and controversy . In the context of an EEO administrative complaint, Complainant must "sufficiently claim personal injury as a result of discriminatory practices ." Edwards v . USPS, EEOC Appeal No . 01830784 (1983) . To this end, the Commission's
regulations require the employee be "aggrieved ." 29 C .F .R . Section 1614 .103 and 1614 .106(a) . See also Trafficante v . Metropolitan Life Insurance CO ., 409 U .S . 209 (1972) . 5 In the instant case, Complainant sufficiently alleged both that he suffered personal harm and that the harm was the result of alleged discriminatory practices ; therefore it is clear that he has S Trafficante is an example of the breadth of the Supreme Court's interpretation of the standing requirement in discrimination cases . In Trafficante, the Supreme Court found that a white tenant could sue his landlord for discriminating
against blacks because he alleged discriminatory practices rendered him "aggrieved ." 24 standing to bring the action . Complainant specifically alleged
that he was a qualified individual with a disability, who suffered harm by allegedly being denied overtime and/or having work hours restricted . He further asserts that such restriction was the product of an alleged discriminatory policy . Furthermore, in the context of class issues, any question
regarding "standing" can be resolved by addressing the typicality question of the Commission's regulations because the class agent "must be part of the class he hopes to represent and must possess the same interests and suffer the same injuries as unnamed class members ." See Estate of Charles Goodman v. DOJ, EEOC Appeal No . 01995812(March 25, 2002) . As was discussed above, I found that the claims of Complainant typical of the class, thus the Agency's motion to dismiss based upon Complainant's lack of "standing" is hereby DENIED .

VI . ADDITIONAL AGENCY ARGUMENTS AGAINST CERTIFICATION
A) THE AGENCY'S ASSERTIONS THAT COMPLAINANT IS NOT DISABLED The Agency asserts that in order for Complainant to represent a class of disabled individuals he must, at the certification stage, establish that he is "disabled" within the meaning of the Rehabilitation Act . The Agency, in support of its argument cites Fox v. United States Postal Service, EEOC Appeal No . 03A00062(May 15, 2001) . A close reading of Fox reveals that it does not address the issue presented and is clearly distinguishable . Fox discusses 25
the requirements of proof in the merits phase of an individual claim and provides no insight regarding the applicable standards in a class case at the certification stage . Complainant asserts that the question of whether he is
disabled, as defined in the Rehabilitation Act, is a question that goes to the merits of the claim and should not be considered at the certification stage .
(See Complainant's Response to Agency opposition dated December 15, 2003) . The Commission's decision in Mitchell v . USPS, 01A20442 (July29, 2003), suggests that at the certification stage Complainant need only make some minimal threshold showing that he and others are members of the class of persons protected by the Rehabilitation Act . 6 In Mitchell, the Administrative Judge denied certification despite the submission of evidence of orthopedictype
disabilities . The Commission found that this information "although not determinative, was nonetheless responsive ." The Commission's decision supports the notion that the proper analysis at the certification stage is whether evidence exists that could support Complainant's claims not whether the evidence can survive factual challenges by the Agency . Similarly, it is
6Some courts have held that even during the liability phase of ADA class actions individual Complainants need not prove that they are "qualified individuals with disabilities ." See EEOC v . Murray, Inc ., 175 F . Supp . 2d . 1053 (M .D . Tenn . 2001), see also U .S . v . City & County of Denver, 934 F . Supp . 1304, 1308 (D . Colo . 1996), aff'd sub nom ., Davol v . Webb, 194 F .3d 1116 (10`n Cir . 1999) . 26 well established that at the certification stage the Commission should accept all Complainant's allegations as true . See for
example, Shelter Realty Corp . v . Allied Maintenance Corp ., 574 F .2d 656 (2nd Cir . 1978), Rodriguez v . Gates, 2002 U .S . Dist . Lexis 10654 at 6 n .2 (C .D . Cal . May 30, 2002), McReynolds v . Sodhexo Marriot Servs . 208 F .R .D . 428 (D .D .C . 2002), J .B . Ex . Rel Hart v . Valdez, 186 F .3d 1280 (loth Cir . 1999) .
Accepting Complainant's allegations as true, I find sufficient evidence exists in the record to support Complainant's allegations contained within his affidavit that he is a "qualified individual with a disability ." (Complainant's Motion Requesting Class Certification Ex . 1) . This assertion is bolstered by medical evidence which was provided by Complainant's physician . One medical report states that Complainant has severe bilateral degenerative arthritis of both knees . His physician notes that "as his lower extremities are so severely damaged (knees) with arthritis (DJD) he is advised to severely limit his walking ." (Agency's Response to Complainant's Motion to Investigate Class
Complaint Ex . G-2) . His medical reports also indicate that he was to limit his activities to sitting only . (Agency's Response to Complainant's Motion to Investigate Class Complaint Ex . G-4) . His physicians also provided information regarding his shoulder impairment, which was characterized as traumatic injury to shoulder right cuff tear and subsequent rotator cuff surgery 27 indicating that, "he is going to have to find a job that doesn't require overhead activities, doesn't require work away from his body and isn't continuously repetitive in nature with that right arm ." (Agency's Response to Complainant's Motion to Investigate Class Complaint Ex . G-1) . This information, taken as true, is
Complainant has an impairment that life activity and also has a record
a major life activity . Secondly, taken as true, this evidence establishes that Complainant's inability to walk and his restricted use of his right shoulder and
right arm substantially limits his activities in a broad class of jobs . Thus, I find that Complainant for the purposes of class certification has established that he is a qualified individual with a disability . '

B) THE AGENCY'S ASSERTIONS THAT COMPLAINANT'S HOURS WERE NOT
sufficient to establish that substantially limits a major of an impairment that limits RESTRICTED

The Agency argued that the complaint should not be certified because Complainant's work hours were not restricted . To this end, the Agency argues that Complainant "cannot establish a 'Because I found Complainant sufficiently established (for purposes of class certification) that he is a qualified
individual with a disability, I need not discuss other alternative avenues of reaching the same result, such as the applicability of "regarded as" prohibitions and/or the ability Complainant to mount his challenge to alleged USPS policies
pursuant to 29 C .F .R . Section 1630 .7 and/or 29 C .F .R . Section 1630 .10 .
28 of violation of the Rehabilitation Act because the act does not
require the Postal Service to make part-time workers full-time if they suffer disabling injury on the job ." The Agency's assertions regarding whether or not
Complainant's work hours were restricted go directly to the merits of the claim . The Commission and the courts have long held that consideration of the merits of a claim is not appropriate at the lass certification stage . In Eisen v . Carlise & Jacquelin, 417 U .S . 156, 180 (1974), the court stated,
[w]e find nothing in either the language or history of Rule 23 that gives a court 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 . . . . In determining the propriety of a class action the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the
merits but rather whether the requirements of Rule 23 are met . Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a Defendant since of necessity it is not
accompanied by the traditional rules and procedures applicable to civil trials . The court's tentative findings, made in the absence of established safeguards,
may color the subsequent proceedings and place an unfair burden on the defendant . The assertion that Complainant's work hours were not restricted is
disputed and vigorously contested by Complainant who alleges that his work hours were restricted and that he was denied overtime. Moreover, the question of whether or not Complainant's work hours were restricted cannot simply be addressed in a disparate treatment context by reference to his job classification as a 29 part-time or regular employee . Any analysis of whether or not Complainant's hours were restricted could involve a whole myriad of issues including, for example, whether other similarly situated employees were denied overtime and/or were allowed to work more hours . These are exactly the types of questions that are properly addressed in the merits phase of the litigation after both sides have been afforded an opportunity to engage in meaningful discovery.

C) THE AGENCY'S ASSERTION THAT COMPLAINANT'S CLAIMS FOR NONINCIDENTALDAMAGES PREDOMINATE .

The Agency argued that the class should not be certified because Complainant's claim for non-incidental damages predominate citing Allison v. Citgo Petroleum Corp ., 1515 F . 3d 402, 411 (5`° Cir . 1998) . This issue was raised in Glover and implicitly rejected by the Commission .
Allison, although cited by some courts as precedent in FRCP 23 cases, was in fact decided under FRCP 42 consolidation procedures and not FRCP 23 . One court, noting the use of FRCP 42 consolidation procedures, specifically held that, "any statements about Rule 23 in Allison are therefore dicta and not law even in the fifth circuit ." Warnell v . Ford Motor Co ., 189 F .R .D . 383,
389 (N .D . Ill . 1999) . The court in Warnell also noted that, "discrimination cases generally are well suited for class actions as the alleged discrimination is by its very nature class-based 30 with class wide injuries and common legal and factual issues ." Id . at 387 . Other courts that have addressed the question presented by Allison more directly have found the reasoning in
Allison unpersuasive . In Molski v . Gleich, 318 F .3d 937,950 (9`h Cir . 2003), a disability discrimination case, the court citing Robinson v . Metro North Commuter Railroad Co ., 267 F .3d 147, 163- 164 (2"° Cir, 2001), declined to follow the reasoning and rationale of Allison noting specifically that to do so would have, "troubling implications for the viability of future civil rights
actions, particularly those under the Civil Rights Act of 1991 ." See also Dukes v. Wall-Mart, 222 F .R .D . 137(N .D . CA 2004) . The court in Taylor v . District of Columbia Water and Sewer, 205 F .R .D . 443 (D .D .C . 2002), rejected outright the bright line rule of Allison stating, "this bright line rule is not consistent with
D .C . circuit case law which emphasizes an ad hoc approach and does not treat compensatory damage claims as per se incompatible with 23(b)(3) ." Allison is unpersuasive for a number of reasons noted in Taylor including the failure of the court in Allison to recognize that, "injunctive relief in employment discrimination claims may have a far greater impact on both parties financially
and otherwise than even substantial compensatory relief ." Id . at 50,51 . Applying this reasoning to the allegations in the present case, it is possible that if Complainants were to prevail and injunctive relief altered the manner in which work hours and/or 3 1 overtime was allotted, this relief, over the career of the employees, could far exceed any compensatory damage award for any
individual . Stated differently, I am not persuaded that nonincidental
damages would predominate . FRCP 23(b) permits class certification if, "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 ." The Commission's regulations set forth at 29 C .F .R . Section 1614 .204, clearly do not mirror the requirements set forth in 23(b) . Thus, in federal sector cases, the applicability of the reasoning and rationale of Allison is
questionable . Nevertheless, in view of the fact that I have found that Complainant meets the prerequisites in the regulations that resemble FRCP 23(a), certification would still be appropriate despite Allison . See 7AA Wright, Miller, & Kane, Federal Practice and Procedure Civil 3d Section 1784 .1(2005), wherein it is noted that, "if Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action should be
certified under subdivision (b)(2) and those aspects of the case not falling within Rule 23(b)(2) should be treated as incidental ." See also DeBoer v. Mellon Co ., 64 F .3d 1171 (8 th Cir . 1995) . D) CLASS CERTIFICATION IS PROPER IN DISABILITY CLAIMS The Agency argued that "class action treatment of disability 32 discrimination claims is inappropriate" because disability claims
necessarily require individualized fact-driven determinations . (Agency opposition to Class Certification p .20) . The argument advanced by the Agency has been previously addressed and rejected by the Commission in Glover, and more recently in Mitchell et al v . USPS, EEOC Appeal No . 01A20442 (July 29, 2003) . In Mitchell, the Commission addressing the issue in the context of an
accommodation case stated, the AJ erred in determining that a claim of denial of accommodation can never satisfy the class certification criteria because it requires an individualized assessment . Here although the potential class members have a variety of orthopedic conditions which will
potentially require individualized accommodations, the gravamen of the claim is that these accommodations are being denied out of hand, without regard to the nature of the disability or needed accommodation . Stated as
such, we find that this claim is class wide in nature and can potentially be certified as a class action complaint . . . .

The allegations in the present case resemble those in Mitchell in that they both involve challenges to alleged USPS policies that allegedly detrimentally affect potential class members with varying orthopedic conditions . It is important to note that any issue surrounding individualized determinations can be addressed simply by bifurcation of the proceeding into liability and damage phases . Bifurcation has long been an accepted practice in handling both disparate impact and pattern and practice cases . The Agency also asserted that certification was not 33 appropriate because sole federal courts have opined that Rehabilitation Act cases are "ill suited" for class treatment . (Agency Brief at p .20 n .6 .) . The Commission has directly considered this question and has flatly rejected the notion . In Travis v . USPS, EEOC Appeal No . 01992222 (October 10, 2002), the Commission overturned an Administrative Judge's specific finding that actions brought under the Rehabilitation Act were "ill suited" for class treatment . The Commission plainly rejected the
notion stating, "the Commission has adopted no such policy, and we reiterate that a class agent regardless of basis, must only meet the aforementioned elements for class certification . See, e .g . 29 C .F .R . Section 1614 .204(a)(1) ." The Commission went further to state that, "class actions play a vital role in the enforcement of equal employment laws, as they are an essential mechanism for attacking broad patterns of discrimination . See e .g . 64 Fed . Reg. 37,644, 37651 (1999) ."

VII) COMPLAINANT'S MOTION FOR SANCTIONS AND/OR THE IMPOSITION OF THE ADVERSE INFERENCE
Complainant filed a motion for sanctions arguing inter alia that the Agency's interlocutory appeal of the order requiring it to identify pending cases was frivolous . or not the appeal was frivolous and/or whether or not sanctions
for such appeal are appropriate is a question that is more properly addressed to the appellate body where the appeal was 34 The question of whether filed, I therefore decline to rule on the issue.

VIII . CONCLUSION
For the reasons stated above, I find that all of the prerequisites of class certification have been met and find class certification appropriate as outlined above . The certified class shall include all permanent rehabilitation employees whose duty hours have been restricted, from January 1, 2000, to the present,
allegedly in violation of the Rehabilitation Act of 1973 . For purposes of this litigation permanent rehabilitation employee includes any rehabilitation program employee whose USPS employment records reflect an employee status code of LDC 69 and/or an employee status code of RC and/or RD . a

IX . NOTICE
This is a decision by an Equal Employment Opportunity Commission Administrative Judge issued pursuant to C .F .R . §1614 .204(d)(7) . With the exception detailed below, the complainant may not appeal to the Commission directly from this decision . EEOC regulations require the Agency to take final action on the complaint by issuing a final order notifying the
complainant whether or not the Agency will fully implement this s At this juncture, with no discovery on the merits, the full scope of the term "duty hour restriction" is not presently known . It is clear, however, from the pleadings filed in this case that two specific types of restrictions have been identified
by Complainant : 1)restrictions limiting the number of hours generally worked and 2)duty hour restrictions which allegedl result in the denial of overtime . 3 5
decision within forty (40) calendar days of receipt of the hearing file and this decision . The Complainant may appeal to the Commission within thirty (30) calendar days of receipt of the Agency's final order . The Complainant may file an appeal whether the Agency decides to fully implement this decision or not . The Agency's final order shall also contain notice of the Complainant's right to appeal to the Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit, and the applicable time limits for such appeal or lawsuit . If the final order does not fully implement this decision, the Agency must also simultaneously file an appeal to the Commission in accordance with 29 C .F .R . §1614 .403, and append a copy of the appeal to the final order . A copy of EEOC Form 573 must be attached . A copy of the final order shall also be provided by the Agency to the Administrative Judge .
If the Agency has not issued its final order within forty (40) calendar days of its receipt of this decision, the Complainant may file an appeal to the Commission directly from this decision . In this event, a copy of the Administrative Judge's
decision should be attached to the appeal . The Complainant should furnish a copy of the appeal to the Agency at the same time it is filed with the Commission, and should certify to the Commission the date and method by which such service was made on the Agency . All appeals to the Commission must be filed by mail, personal 3 6 delivery or facsimile to the following address :
Director, Office of Federal Operations
Equal Employment Opportunity Commission
P .O . Box 19848
Washington, D .C . 20036
Fax No . (202)663-7022
Facsimile transmissions over 10 pages will not be accepted .

COMPLIANCE WITH AN AGENCY FINAL ACTION
An Agency's final action that has not been the subject of anappeal to the Commission or civil action is binding on the Agency. See 29 C .F .R . §1614 .504 (1999) . If the Complainant believes that the Agency has failed to comply with the terms of its final action, the Complainant shall notify the Agency's EEO Director, in writing, of the alleged noncompliance within thirty (30) calendar days of when the Complainant knew or should have known of the alleged noncompliance . The Agency shall resolve the matter and respond to the Complainant in writing . If the Complainant is not satisfied with the Agency's attempt to resolve the matter, the Complainant may appeal to the Commission for a determination of whether the Agency has complied with the terms of its final action . The Complainant may file such an appeal within thirty (30) 3 7 calendar days of receipt of the Agency's determination or, in the even that the Agency fails to respond, at least thirty-five (35) calendar days after Complainant has served the Agency with the allegations of noncompliance . A copy of the appeal must be served on the Agency, and the Agency may submit a response to the Commission within thirty (30) calendar days of receiving the
notice of appeal .

Class Certification
If the decision is to accept (certify) the class complaint, Commission regulations require the Agency to notify all class members . 29 C .F .R . Section 1614 .204(e)(1) . The Agency must use all reasonable means to notify all class members of the acceptance of the complaint within 15 days of receipt of the Administrative Judge's decision or within a reasonable time frame specified by
the Administrative Judge . See also MD-110 8-5, 8-6 November 9, 1999 .
In order to ensure compliance with the requirements of §1614 .204(e)(1) and (2), the agency is required to submit to the undersigned a proposed notice along with a proposed method of notification within 15 days of receiving a copy of this decision . We encourage the parties to stipulate to the form and content
proposed notice to the class and the manner in which it would issued, consistent with this decision and the requirements of §1614 .204(e) . If the parties are unable to so stipulate, the 3 8 of a be class agent may submit any objections to the agency's proposal within five (5) days of receiving the same from the agency . Once the undersigned approves the notice and the method of its distribution, the agency shall notify all class members of the acceptance of this class complaint within 15 days of the date the agency issues a final order fully implementing this decision pursuant to §1614 .204(d)(7)(1999) or within 15 days of the date this decision otherwise becomes the agency's fi of its failure to timely issue a final order.

Dated :
5, 1 / 9 ) OS
I, Nilsa Gordon, hereby certify that on August 19, 2005, I
mailed a copy of the above Decision to the following persons :
John Mosby
621 17 th Street #925
Denver, CO 80293
Edmond C . Walker
621 17 th Street #925
Denver, CO 80293
David B . Ellis
USPS
Dominion Plaza South
600 17 th Street, Suite 950
Denver, CO 80202-5414
Kevin Calamoneri
USPS
475 L'Enfant Plaza, SW
Room 6212
Washington, D .C . 20260-1150
Marilyn Cain Gordon
7603 Georgia Ave ., NW
Suite 301
ashington, DC 20012
CERTIFICATE OF MAILING