February 6, 2004

ELWYN F. SCHAEFER & ASSOCIATES, P.C.
 
To Whom it May Concern: Re: Representation of Postal employees

This is an update on both the pending ("Cyncar") class action and that class action that we were considering bringing in Federal District Court.  The Cyncar matter was certified as a class action by an Administrative Judge on April 1, 2003.  The ground for certification was "discrimination based upon disability, resulting in disparate treatment, discipline, and failure to reasonably accommodate".  The Agency filed an appeal and we are still waiting for a decision from the office of Federal Operations that, hopefully, will affirm the decision in our favor.  Again, the initial decision was based upon disability-related discrimination where the Postal Service employee is an individual with a disability as defined by the Rehabilitation Act. 

 

It is our position that such disabled individuals have been denied leave in violation of the Family and Medical Leave Act.

 

The other class action that we had contemplated bringing was based upon the denial of such leave for an eligible employee so that he or she may care for his or her spouse, children or parent if that family member has a serious health condition, or for the employees own serious health condition.  A "serious health condition" is a less stringent standard than that set forth in the Rehabilitation Act referred to above.

 

We have received numerous responses from across the country and, after much discussion, and great reluctance, our team has decided not to go forward with the latter class action.  Our reasons, in very general terms are as follows: (1) claimants have little or no monetary loss.  Damages for emotional distress, pain and suffering are not available under the FMLA.  Nominal damages are not available under the FMLA.  It is not clear that any violations have taken place with regard to a class because medical certifications are indeed often incomplete.  (2) Some claimants are time-barred.  There is a two sometimes three, year statute of limitations.  (3)  Many claimants have taken their claims through the collective bargaining agreement grievance process.  (4)  Claims are too varied for a class and, it appears, it failed to meet the class certification prerequisites of commonality, typicality and numerousity.  (5) We have had difficulty in identifying class representatives.  Those who might qualify have suffered little or no monetary loss.

 

We reviewed more than 400 applications as part of what we believed to have been a full and complete investigation.  We are disappointed with this necessary decision.  Even if we were successful in getting a national class certified, the damages would be so minimal that it is impossible for us to justify the risks inherent in contingent feel litigation, which might drag on for between 5-7 years, if not longer.

 

If the Cyncar class certification decision is affirmed we will be moving forward on behalf of Postal Service employees who qualify as Rehabilitation Act disabled persons and were denied Family Medical Leave.  We will review the applications sent us with that qualification in mind.

 

Finally, we will continue to speak with Colorado/Wyoming (only) employees who have been denied family medical leave in the last two-three years.  Contact Barbara Edin by e-mail at BarbaraEdin@msn.com.