Walsh v. United States Postal Service

Filing 26

CONSENT JUDGMENT and PERMANENT INJUNCTION. JUDGMENT IS HEREBY ENTERED in favor of the Secretary for the total amount of one hundred eighty-three thousand seven hundred thirty-two dollars and eighty-five cents ($183,732.85). Within seventy-five ( 75) calendar days of entry of this Order, Defendant shall pay Maurice Mitchell the sum of seventy-two thousand five hundred dollars and zero cents ($72,500.00); Christopher Jimenez the sum of fifteen thousand ten dollars and seventeen cents (� 36;15,010.17); Samuel Sweezer the sum of ninety-six thousand two hundred twenty-two dollars and sixty-eight cents ($96,222.68). Defendant shall provide Counsel for the Acting Secretary with proof that the settlement sums were paid per the terms above within three (3) business days of overnight mailing these settlement sums to Complainants. Each party shall bear its own fees, costs, and other expenses. Signed by Judge Robert J. Bryan. (MW)

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1 2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 5 6 7 JULIE A. SU, Acting Secretary of Labor, United States Department of Labor, 8 9 10 v. 13 14 15 Plaintiff, CONSENT JUDGMENT AND PERMANENT INJUNCTION UNITED STATES POSTAL SERVICE, Defendant. 11 12 Case No. 3:22−cv−01176−RJB (Mitchell) JULIE A. SU, Acting Secretary of Labor, United States Department of Labor, v. Case No. 3:22−cv−06002−RJB (Jimenez) Plaintiff, UNITED STATES POSTAL SERVICE, 16 Defendant. 17 18 19 20 21 Case No. 3:23−cv−05007−RJB (Sweezer) JULIE A. SU, Acting Secretary of Labor, United States Department of Labor, v. Plaintiff, UNITED STATES POSTAL SERVICE, 22 Defendant. 23 24 25 26 Plaintiff Julie A. Su, Acting Secretary of Labor, U.S. Department of Labor (“Acting Secretary”); and Defendant United States Postal Service (“USPS” or “Defendant”) agree to resolve the matters in controversy in the above-captioned civil actions and agree to the entry of 27 CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 1 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 this Proposed Consent Judgment and Permanent Injunction (“Consent Judgment” or “Order”) as 2 provided below. STATEMENT AND AGREEMENTS BY THE PARTIES 3 4 1. The Acting Secretary filed complaints in the above-captioned three civil actions 5 pursuant to Section 11(c), 29 U.S.C. § 660(c)(1), of the Occupational Safety and Health Act 6 (“the Act”) based on the Occupational Safety and Health Administration (“OSHA”) findings that 7 the USPS violated the Act when it terminated the complainant probationary employees 8 (“Complainants”) because they reported a work-related injury and, in some cases, delayed the 9 processing of workers’ compensation paperwork resulting in untimely payments. In bringing 10 these actions, the Acting Secretary represents the interests of Complainants Maurice Mitchell, 11 Christopher Jimenez, and Samuel Sweezer. 12 13 14 15 16 2. In these cases, the Acting Secretary sought back pay, front pay, consequential damages, and/or emotional distress damages suffered by each Complainant. 3. Defendant admits that the Court had jurisdiction over it and the subject matter of this action. 4. Defendant admits it has a policy and form (PS Form 1750) that requires it to place 17 probationary employees on standards and then evaluate such employees against those standards 18 at 30, 60 and 80 days of their probationary periods. 19 20 21 5. The parties consent to the entry of this Consent Judgment without further trial or adjudication. 6. This Consent Judgment is entered without restricting the Acting Secretary’s right 22 to investigate and redress matters within her jurisdiction under the Act not arising out of or 23 relating to the transactions and occurrences alleged in her Section 11(c) complaints for the above 24 cases, including the Acting Secretary’s right to institute further enforcement actions with respect 25 to any other such matter. PERMANENT INJUNCTION 26 27 7. Defendant, its officers, agents, servants, employees and those persons in active CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 2 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 concert or participation with it are enjoined as provided in Paragraphs 8 through 12 in the 2 following Manager of Post Office Operations (“MPOO”) Areas in Defendant’s Washington 3 District: MPOO Area C for the Vancouver area that has five postal facilities;1 MPOO Area S for 4 the Seattle area that has 40 postal facilities;2 and MPOO Area T for the Tacoma area that has 14 5 postal facilities.3 If Defendant’s MPOO Areas change, this injunction shall apply to at least the 6 postal facilities existing in the MPOO Area as of the date of the Order and any additional 7 facilities included in the MPOO Area (or other organizational subdivision) in which the Tacoma- 8 University Place, Seattle-Riverton Heights, and East Vancouver DCU postal facilities exist. 8. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Defendant, its officers, agents, servants, employees and those persons in active concert or participation with it are permanently restrained from violating the provisions of 1 Cascade Park Post Office - Finance Station; Downtown Vancouver Post Office - Finance Station; East Vancouver DCU Post Office - Carrier Annex; Orchards Post Office - Station and Vancouver Post Office - Main Post Office. 2 Bainbridge Is. Post Office - Station, Ballard Post Office - Finance Station, Ballard Carrier Annex, Bitter Lake Post Office - Station, Broadway Post Office - Finance Station, Burien Post Office - Finance Station, Columbia Post Office - Finance Station, Columbia Carrier Annex, Columbia New Post Office - Finance Station, Des Moines Post Office - Station, East Union Post Office - Finance Station, Federal Post Office - Finance Station, Georgetown Post Office Station, Greenwood Post Office - Finance Station, Interbay Carrier Annex, International Post Office - Finance Station, Lake City Post Office - Station, Magnolia Post Office - Finance Station, Midtown Post Office - Station, North City Post Office - Finance Station, North City Carrier Annex, Northgate Post Office - Finance Station, Pioneer Square Post Office - Finance Station, Queen Anne Post Office - Finance Station, Riverton Heights Post Office - Station, Seattle Post Office - Main Post Office, Seattle Business Mail Entry Other Customer Service - Business Service Network, Seattle Carrier Annex, Seattle CFS Other Customer Service - Computerized Forwarding System, Skyway Post Office - Station, Smith Kline Non-Postal Facility - Plant Load Major Mailer, Terminal Post Office - Station, Terminal Operations Administrative Office - Post Office Administrative Office, Tukwila Post Office - Finance Station, University Post Office Station, Wallingford Post Office - Station, Wedgwood Post Office - Station, West Seattle Post Office - Station, Westwood Post Office - Station. 3 Downtown Tacoma Post Office Station, Evergreen Post Office - Finance Station, Fife Carrier Annex, Fort Lewis Post Office - Branch, Lakewood Post Office - Branch, Lincoln Post Office - Station, Madigan Hospital Post Office - Finance Branch, Martin Luther King Jr Post Office - Finance Station, McChord AFB Post Office - Branch, Parkland Post Office - Branch, Proctor Post Office - Station, South Tacoma Post Office - Finance Station, TCCF Carrier Annex and University Place Post Office - Branch. CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 3 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 Section 11(c) of the Act (29 U.S.C. § 660(c)) through, in any manner, discriminating against any 2 employee, such as by terminating a probationary employee for offenses that typically do not 3 warrant termination of a probationary employee or manufacturing non-factually supported 4 reasons to justify the termination, because said employee filed any complaint or instituted or 5 caused to be instituted any proceeding under or related to the Act or testified or is about to testify 6 in any such proceeding or because of said employee’s exercise of any right afforded by the Act 7 on behalf of themselves or others, including because the employee reported a work-related 8 injury, or sought compensation for a work-related injury. 9 10 9. Furthermore, Defendant shall: a. Give probationary employees who report work-related injuries equal 11 opportunity to pass probation; this includes but is not limited to evaluating probationary 12 employees based on their medical restrictions, providing feedback and their performance 13 evaluations as required in its PS Form 1750, and/or extending their probationary periods 14 as warranted. 15 b. Provide probationary employees who report a workplace injury with the 16 necessary information to file a worker’s compensation claim during their orientation to 17 the Postal Service. 18 c. Conduct a review by a District Human Relations (“HR”) or Labor 19 Relations (“LR”) officer of any proposed termination of a probationary employee who 20 reported a workplace injury. Such officer must have received training(s) on the 21 requirements of this Consent Judgment and the requirements of Section 11(c) of the OSH 22 Act as enumerated in Paragraphs 11(f)-(g) of this Consent Judgment. The review shall at 23 least include a review of the PS Form 1750 completed for the probationary employee. 24 The results of the review required hereunder must be communicated to the management 25 official proposing the termination, who must take appropriate action based on the HR/LR 26 officer’s review. 27 d. Follow its own written policies regarding fair treatment and evaluation of CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 4 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 probationary employees, including injured probationary employees, and probationary 2 employees who exercise their rights under Section 11(c). 3 10. 4 Defendant shall comply with the following notice and training requirements: a. Defendant shall provide the Notice of Rights informing probationary 5 employees of their rights to report work-related injuries and related medical restrictions 6 free of retaliation, including unfair evaluations and termination, attached herein as 7 Appendix A as follows: within ten (10) calendar days of the entry of this Order for all 8 probationary employees employed by Defendant as of the entry date of this Order; and 9 within ten (10) calendar days of Defendant employing a new employee (e.g., new hire or 10 transfer) to the postal facilities specified in Paragraph 7, if the new employee is employed 11 in these postal facilities between the entry date of this Order and December 31, 2026. 12 b. Defendant shall provide a copy of this Consent Judgment as follows: 13 within ten (10) calendar days of the entry of this Order for all probationary employees 14 employed by Defendants as of the entry date of this Order; and within ten (10) calendar 15 days of Defendant employing a new probationary employee to the postal facilities 16 specific in Paragraph 7, if the new employee is employed in these postal facilities 17 between the entry date of this Order and December 31, 2026. 18 c. Within ten (10) calendar days of entry of this Order, Defendant shall post 19 a copy of this Consent Judgment in all postal facility locations that are accessible to non- 20 supervisory employees (e.g., break room or locker room) for a period of six (6) months. 21 d. Within ten (10) calendar days of the entry of this Order, Defendant must 22 send an e-mail to all of its Postmasters, managers, and supervisors (“management 23 officials”) within MPOO Areas C, S and T, the body of which is attached as Appendix B 24 notifying them of this Consent Judgment and the rights and responsibilities under Section 25 11(c) of OSH Act. This email message shall contain the subject line: “Notice of USPS 26 Consent Judgment & Rights and Responsibilities for Section 11c Whistleblowers.” This 27 e-mail shall emphasize the importance of adhering to the requirements of this Consent CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 5 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 Judgment and OSHA whistleblower laws, including the prohibition against terminating, 2 discriminating, or retaliating against employees for reporting work-related injuries at any 3 time to include during their probationary period. USPS shall attach the following 4 documents to this email: this Consent Judgement, PS Form 1767 (Report of Hazard, 5 Unsafe Condition or Practice) (Appendix C); and an OSHA Fact Sheet for 6 Whistleblower Complaints Under Section 11(c) (Appendix D). 7 e. The email notification in the preceding paragraph shall also be sent to all 8 management officials on an annual basis in September 2025 and September 2026. 9 Defendant will copy OSHA on all of these email notifications at the following e-mail 10 addresses: OSHA-REG09-WB@DOL.gov and Eldridge.Megan@dol.gov. To the extent 11 that Defendant sends more than one e-mail because the list of names is too large to 12 include in one e-mail, Defendant will copy OSHA at the e-mails listed above for each set 13 of e-mails it sends. 14 f. Within one-hundred and twenty (120) calendar days of entry of this Order 15 and annually thereafter to December 31, 2026, Defendant shall provide training to all 16 management officials and the District Manager about each of the legal requirements 17 contained within this Consent Judgment, including training about Defendant’s policies 18 specified in Paragraph 9 above, including, but not limited to, conducting performance 19 evaluations, conducting performance evaluations that consider medical restrictions to the 20 extent they exist, processing workers’ compensation claims timely, etc. Additionally, 21 Defendant shall provide this training to all Labor Relations Specialists, Human Resource 22 Managers and other persons who advise these management officials regarding their 23 duties pursuant to this Consent Judgment even if they have taken it within the last year. 24 g. Within one-hundred and twenty (120) calendar days of the entry of this 25 Order and annually thereafter to December 31, 2026, Defendant must provide its “OSHA 26 Whistleblower Protection” training to all management officials and the District Manager 27 who are either currently working within the MPOO Areas specified in Paragraph 7 or CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 6 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 who is the District Manager for them even if they have taken it within the last year. 2 Additionally, Defendant shall provide this training to all Labor Relations Specialists, 3 Human Resource Managers and other persons who advise these management officials 4 regarding their Section 11(c) duties again even if they have taken it within the last year. h. 5 By November 30, 2024, and annually thereafter to December 31, 2026, 6 Defendant will confirm to OSHA that it covered the required training in the preceding 7 paragraph for its employees holding the positions named therein. Upon OSHA’s request, 8 Defendant shall produce within thirty (30) days to OSHA data identifying the training 9 participants’ full name, job title, postal facility where this employee is employed, date 10 they took the training, and the title of the training for the postal facilities identified by 11 OSHA. Defendant will send the training roster to OSHA-REG09-WB@dol.gov and 12 Eldridge.Megan@dol.gov (Regional Supervisory Investigator, OSHA Whistleblower 13 Protection Programs) using e-mail. i. 14 Within ten (10) calendar days of entry of this Order, Defendant shall post 15 for six (6) months or as long as required by law, its PS Form 1767 (Report of Hazard, 16 Unsafe Condition or Practice) (Appendix C); an OSHA Fact Sheet for Whistleblower 17 Complaints Under Section 11(c) (Appendix D), and OSHA Form 300A (Summary of 18 Work Related Injuries and Illnesses) (Appendix E), in the same location it posts the 19 Notice of Rights to employees (Appendix A). 20 11. 21 22 Defendant is enjoined as follows, regarding the rights of the Section 11(c) Complainants: Christopher Jimenez, Maurice Mitchell, and Samuel Sweezer: a. Defendant must expunge any adverse references from Complainants’ 23 personnel records (informal and eOPF). For each Complainant who is not reinstated to 24 employment with Defendant, Defendant shall provide each of them clean employment 25 records that indicate they separated from the USPS for personal reasons, an affirmative 26 notation in their employment records that they are eligible for rehire and will ensure that 27 this provision is enforced throughout all computerized data systems and other locations CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 7 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 2 where Defendant maintains personnel records. b. Defendant will only release its employment records regarding any 3 Complainant or discuss the reasons for their departure from the USPS as required by law 4 or with the Complainant’s expressed written permission. Should USPS be required by 5 law to release Complaint’s employment records, it will notify Complainant of this 6 requirement within 4 (four) business days of receiving it at Complainants’ addresses 7 listed in Paragraphs 12 – 14 below. In this notice to Complainant, Defendant will include 8 all of the written documents it received requiring it to provide any of Complainant’s 9 employment records to a third party. Furthermore, Complainants agree to refer 10 prospective employers to Defendant’s Human Resources Service Center (HRSSC) by 11 calling 1-877-477-3273 and not refer them to contact anyone in their prior or current 12 facilities nor their prior or current supervisors. 13 c. Defendant shall re-employ Complainant Christopher Jimenez as a career 14 employee at the same job he held at the time of his unlawful termination, with all rights, 15 including, but not limited to, each: pay increase, pension contribution, and bonus; 16 benefits (e.g., vacation leave; other leave like sick leave; medical, dental, eye, and life 17 insurance; Thrift Savings Plan (“TSP”) 1 (one) percent automatic contribution); and 18 seniority he would have received if his employment had not been terminated. For the 19 determination of his restored benefits from April 30, 2021, to April 30, 2023, Defendant 20 shall calculate his benefits as if Mr. Jimenez had been a non-career employee. For the 21 determination of his restored benefits from May 1, 2023, to the date of his imminent 22 reemployment (not later than July 15, 2024), Defendant shall calculate his restored 23 benefits as if Mr. Jimenez had been a career employee. For Mr. Jimenez to receive the 24 TSP 1 (one) percent automatic contribution from Defendant pursuant to this Consent 25 Judgment, he will need to enroll in TSP within 90 (ninety) days of being reemployed. 26 Defendant shall provide Mr. Jimenez with a designated on-the-job instructor at the 27 commencement of his reemployment for at least a period of three (3) days. CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 8 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 d. 1 Unless already addressed, within ten (10) calendar days of completing any 2 requirement delineated in Paragraph 11, Defendant shall produce evidence of compliance 3 to OSHA, via e-mail to OSHA-REG09-WB@DOL.gov and Eldridge.Megan@dol.gov. JUDGMENT AND ORDER 4 5 JUDGMENT IS HEREBY ENTERED, pursuant to Section 11(c) of the OSH Act, 29 6 U.S.C. §§ 660(c), in favor of the Secretary for the total amount of one hundred eighty-three 7 thousand seven hundred thirty-two dollars and eighty-five cents ($183,732.85), the liability for 8 which is allocated as specified below: 9 12. Within seventy-five (75) calendar days of entry of this Order, Defendant shall pay 10 Maurice Mitchell the sum of seventy-two thousand five hundred dollars and zero cents 11 ($72,500.00), which is comprised of forty-three thousand dollars and zero cents ($43,000.00) in 12 back wages and interest and twenty-nine thousand five hundred dollars and zero cents 13 ($29,500.00) for non-pecuniary damages. This payment shall be made by check made out to 14 MAURICE MITCHELL as the payee, and sent by priority mail to Maurice Mitchell, 3210 S 76th 15 St., Tacoma WA 98409.  16 13. Within seventy-five (75) calendar days of entry of this Order, Defendant shall pay 17 Christopher Jimenez the sum of fifteen thousand ten dollars and seventeen cents ($15,010.17), 18 which is comprised of twelve thousand five hundred ten dollars and seventeen cents 19 ($12,510.17) in back wages and interest, and twenty-five hundred dollars and zero cents 20 ($2,500.00) for non-pecuniary damages. Defendant shall re-employ Christopher Jimenez 21 consistent with paragraph 11.c. of this Consent Judgment. This payment shall be made by check 22 made out to CHRISTOPHER JIMENEZ as the payee, and sent by priority mail to Christopher 23 Jimenez, 6450 19th St. W., #A, Fircrest, WA 98466.  24 14. Within seventy-five (75) calendar days of entry of this Order, Defendant shall pay 25 Samuel Sweezer the sum of ninety-six thousand two hundred twenty-two dollars and sixty-eight 26 cents ($96,222.68), which is comprised of nineteen thousand dollars and zero cents ($19,000.00) 27 in back wages and interest and seventy-seven thousand two hundred and twenty-two dollars and CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 9 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 sixty-eight cents ($77,222.68) for non-pecuniary damages. This payment shall be made by check 2 made out to SAMUEL SWEEZER as the payee, and sent by priority mail to Samuel Sweezer,  3 4907 Plomondon Street Apartment, #47, Vancouver, WA 98662. 4 15. Defendant shall provide Counsel for the Acting Secretary with proof that the 5 settlement sums were paid per the terms above within three (3) business days of overnight 6 mailing these settlement sums to Complainants. Defendant shall provide notice via email to the 7 following Counsel: 8 a. Norman Garcia: garcia.norman@dol.gov for Samuel Sweezer; 9 b. Natasha Magness: magness.natasha.a@dol.gov for Christopher Jimenez; and  10 c. 11 12 16. Natasha Magness: magness.natasha.a@dol.gov for Maurice Mitchell. Each party shall bear its own fees, costs, and other expenses incurred by such 13 party in connection with any stage of this proceeding, including, but not limited to, any costs 14 referenced in the Equal Access to Justice Act, as amended, to the date of execution of this 15 Consent Judgment. The Court’s Order dated January 25, 2024 (ECF No. 40) awarding 16 attorney’s fees and costs is satisfied in full under this Consent Judgment. 17 18 17. This Court retains jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment. 19 IT IS SO ORDERED. 20 Dated this 3rd day of July 2024. 21 A   22 23 ROBERT J. BRYAN 24 United States District Judge 25 26 27 CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 10 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 1 Presented by: 2 Dated this third day of July, 2024 3 4 5 Norman E. Garcia Counsel for Acting Secretary of Labor Julie A. Sue United States Department of Labor 6 7 8 Dated this third day of July, 2024 9 10 Steven B. Schwartzman, Counsel for the United States Postal Service 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CONSENT JUDGMENT AND PERMANENT INJUNCTION Case No. Page 11 USDOL Office of the Solicitor 90 7th Street, Suite 3-700 San Francisco, CA 94103 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ7ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ5ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ ÿ!ÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ ÿ!ÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ ÿ!ÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ7 ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ7ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ77ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ75ÿÿ7 0123ÿ567589 8 8ÿÿÿ93ÿ 5ÿÿÿ3ÿ  57ÿÿÿ13ÿ7ÿÿ7

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