Frances Johnson-Feldmann v. Secretary, Department of Veterans Affairs
EEOC Case No. 100-A0-7234X
Agency Case Nos. 93-2634 et al. and 93-0160 et al.

SETTLEMENT AGREEMENT

Frances Johnson-Feldmann on behalf of herself, as Class Agent in the above captioned matter, and on behalf of all others similarly situated, and James J. Nocks, M.D., Director, Veterans Integrated Service Network (VISN 5), on behalf of the Department of Veterans Affairs, hereby agree to settle and dismiss the above-captioned class action complaint on the following terms and conditions:

I. Definitions
The following terms, as used in the Settlement Agreement, shall have the meanings defined below:

A. Administrative Class Complaints
The three formal administrative complaints of discrimination filed with the Agency’s District of Columbia (D.C.) Medical Center by Senior Grade Nurses in March 1993 (Agency Case Nos. 93-2634 et al.), August 1993 (Agency Case Nos. 93-0160 et al.), and March/April 1995 (no Agency case numbers assigned) regarding implementation of the Nurse Pay Act, now consolidated and pending before the Washington Field Office of the Equal Employment Opportunity Commission (EEOC) as EEOC No. 100-A0-7234X.

B. Class Members
The Class is defined as “Senior Grade Registered Nurses at the District of Columbia Veterans Administration Medical Center who are female and/or above the age of 40.” Since the 1993 nurse conversion, this definition is modified to include all Grade III and IV nurses at the Department of Veterans Affairs Washington Medical Center who are female and/or above the age of 40. Class members include only those Senior Grade/Grade III and IV nurses at the Department of Veterans Affairs Washington Medical Center who are female and/or 40 years of age or older at any time prior to the Final Approval of this settlement, and who were employed as such between January 1, 1993 and the date of final approval of this settlement.

C. Class Counsel
Michael Kator, Jessica L. Parks, Laura Stefani, and other attorneys of the law firm of Kator, Parks & Weiser, P.L.L.C., 1020 19th Street, NW, Suite 350, Washington, D.C. 20036.

D. Class Representative, Class Agent
The class representative (Class Agent) is Frances Johnson-Feldmann.

E. Effective Date
The date after which either 1) the Administrative Judge has approved the provisions of this Settlement Agreement pursuant to 29 C.F.R. § 1614.204 (g) and MD 110(8), and the time for appeal has run without an appeal being filed or 2) if an appeal is filed, the final resolution of that appeal.

F. Final Approval
The entry of an order by the Administrative Judge approving the Settlement Agreement as fair, reasonable and adequate to the Class as a whole, after having reviewed any petitions to vacate filed by members of the class.

G. Notice of the Resolution
Notice of the resolution of the class complaints will be given to all class members and to the Administrative Judge by delivering this agreement to the Administrative Judge and mailing the Agreement by certified mail to the last known address of each class member. The Notice shall comply with the provisions of 29 C.F.R. § 1614.204 and MD 110(8).

H. Time Limit for Filing Petitions to Vacate
Class members will have 30 days from their receipt of the Notice of the Resolution to file a petition to vacate the settlement. They shall file any petitions to vacate in writing with: Administrative Judge Evelyn M. Gunn, EEOC Washington Field Office, 1400 L Street, N.W., Suite 200, Washington, D.C. 20005, Attn: VA Nurses Settlement. Class members shall serve a copy of any petitions to vacate on Class Counsel and Agency Counsel.

I. Agency, Agency Counsel
The Agency is the Department of Veterans Affairs, Washington Medical Center. Agency Counsel are Michael Hogan, Acting Regional Counsel, and Thomas J. Kniffen, Staff Attorney, Office of Regional Counsel, Department of Veterans Affairs, 1722 Eye Street, N.W., 3rd Floor, Washington, D.C. 20421.

II. Scope of the Settlement Agreement

A. The Settlement Agreement resolves and extinguishes all claims that the Class Agent and Class Members may have against the Agency alleging discrimination in the implementation of the Nurse Pay Act from 1991 until the effective date of this agreement on the bases of sex and/or age, including any claims under disparate impact theories of recovery, disparate treatment theories of recovery, or any other theory of recovery based on allegations of sex and age discrimination for events occurring in whole or in part between 1991 and the effective date of this Agreement.

B. Specifically excluded are any claims of class members who, as of the date of the Final Approval of the Settlement Agreement: 1) have pending in Federal court complaints of discrimination; and 2) class members who have pending before the Agency or the EEOC administrative complaints that raise bases other than sex and/or age discrimination regarding the implementation of the Nurse Pay Act. The Class agrees to provide the agency within 30 days of the final approval of this Agreement a list of pending actions excluded by this provision which are known to the class.

C. The Settlement Agreement is conditioned on Approval by an Administrative Judge at the EEOC, after notice is provided to all Class Members and consideration of any petitions to vacate are filed by Class Members. In the event that any Class Member appeals from any decision of the Administrative Judge approving the Settlement Agreement, the parties will jointly move for expedited consideration of the appeal so that a final determination of the fairness of the Settlement Agreement can be obtained as promptly as possible.

D. It is an express condition of this Agreement that the parties are bound by this Agreement, and that this Agreement is approved by the Administrative Judge as written. The parties have bargained for the terms in this Agreement. No section or subsection of this Agreement may be modified or stricken. If the Administrative Judge does not approve this Settlement Agreement as written, either party may elect to withdraw from this Agreement, which shall then be deemed null and void.

E. Nothing in this Agreement may be taken as modifying either the statutory or regulatory procedures pertaining to initiating and maintaining administrative and judicial proceedings under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., or the Federal civil service laws.

F. The Agency agrees to mail a Notice of Resolution to all Class Members within 15 days of signing this agreement. See 29 C.F.R. § 1614.204(g)(2)(4). The Notice will be drafted jointly by the parties. The notice will include a copy of the proposed Settlement Agreement and a statement of each Class Member's right to challenge the fairness of the Settlement Agreement in accordance with 29 C.F.R § 1614.204 and MD 110(8), a statement summarizing the terms of paragraph III herein, and all other terms required by 29 C.F.R. § 1614.204 and MD 110(8). The Class will provide the Agency with a list of known Class Members and their last knows addresses, with the understanding that this is not a complete list.

III. NOTICE OF RIGHTS (AGE DISCRIMINATION)

A. If the Class Agent individually and on behalf of any Class Member has waived claims based upon alleged age discrimination, the Parties agree that this Agreement complies with the requirements of the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act. In particular, the Class Agent, is hereby advised of the following:

B. The Class Agent is advised to consult with Class Counsel before signing and delivering this Agreement. However, the decision whether to consult with an attorney rests with Class Agent.

C. The Class Agent is advised to read the entire Agreement and to seek clarification of any provision(s) she does not fully understand before signing this Agreement.

D. The Class Agent is advised that she has not waived any rights or claims that may arise after the date of the Agreement.

E. The Class Agent is advised that she has not waived any rights or claims to benefits to which she is entitled, except as expressly provided in the terms of the Agreement.

F. The Class Agent is advised that she has twenty-one (21) days from the date of receipt of this Agreement to consider its terms. Should the Class Agent sign this Agreement before the twenty-first (21st) day, the Class Agent’s decision to accept a shortening of this period must be knowing and voluntary and must not be induced by the Agency or by anyone else through fraud, misrepresentation and/or a threat to withdraw or alter the terms of this Agreement.

G. The Class Agent is advised that she has seven (7) days from the date that all Parties have signed this Agreement to revoke this Agreement. The Class Agent may revoke this Agreement by delivering written notice of revocation to the Agency’s representative at the following address:

Attention:
Office of the Regional Counsel
Department of Veterans Affairs
1722 Eye Street, NW, Third Floor
Washington, DC 20421

Facsimile: 202-530-9431

H. For the revocation to be effective, written notice must be sent to the Agency’s representative no later than close of business on the seventh (7th) day after the final signature on this Agreement is secured. If the Class Agent revokes this Agreement, it will not be effective or enforceable, and neither the Class Agent nor Class Members will receive the benefits described herein. If the Class Agent fails to revoke this Agreement within seven (7) days from the date on which the final signature on this Agreement is secured, it will become enforceable by the EEOC in accordance with the terms and conditions herein. The date of the Class Agent’s notice of revocation will be measured by the date of the postmark, not by the date of the Agency’s receipt.

IV. Non-Monetary Relief

A. The Agency agrees that its policies and practices for setting nurse pay will be non-discriminatory, and consistent with the Nurse Pay Act. The Agency agrees that if it conducts salary surveys to set nurse pay, the surveys will be valid and performed according to the Nurse Pay Act, as amended, and published Agency Policy in effect at the time of the survey. The Agency agrees to retain all survey documents for at least a three year period and to produce those documents upon an order by a competent authority.

B. Prior to conducting a nurse pay salary survey for 2003, Class Counsel and the Class Agent will be given the opportunity for a meeting with the salary survey program manager, at a date and time mutually agreeable to both parties to the herein Agreement. The survey program manager will review with the Class Agent and Class Counsel the Agency policy governing survey methods, and the Class Agent and Class Counsel will be given the opportunity to comment in writing regarding the Agency’s survey methods prior to conducting the survey. The comments of the Class Agent and/or Class Counsel, written or oral, shall not bind the Agency.

V. Monetary Relief

A. The Agency will pay to the Class the total sum of three million six hundred thousand dollars and no cents ($3,600,000.00), in full, complete and final satisfaction of all claims, including interest, arising out of the Class Agent and Class Member’s allegations of discrimination in employment practices as described in the scope of the Settlement Agreement, including attorney fees, expenses and costs. This payment shall be made by electronic deposit to an account established for such purpose by counsel for the class. No distribution from this account shall be made by Class Counsel until the effective date of the settlement agreement. Distribution of the funds to the class members shall be the responsibility of Class Counsel; provided, however, that the agency will provide all reasonable and necessary assistance to Class Counsel in this endeavor and the agency will be responsible for identifying those amounts, if any, from any payments to individual class members that must be withheld (for FICA, Medicare or any other purpose) with the understanding that Class Counsel will act in reliance on this information. The Agency shall pay 60% of this total sum within 30 days of final approval of the settlement agreement by the Administrative Judge, which shall be held in escrow until the effective date of settlement. The Agency shall pay the remaining 40% no later than December 30, 2003. The parties to the herein Agreement recognize that payments by the Agency may be delayed because of the annual congressional appropriation and authorization process.

B. Class Counsel has devised a formula for distributing the proceeds of this settlement. Two million, six hundred thousand dollars and no cents ($2,600,000.00) (the “Settlement Fund”) will be paid to the Class Members in accordance with the Formula attached as Appendix A. Class Counsel will send all actual payments under the herein Agreement to individual Class Members. No Class Member may opt out of this Settlement Agreement; however, any Class Member may elect not to receive the monetary relief afforded under this Settlement Agreement. Any monetary relief that is unclaimed or rejected will be reallocated to the participating Class Members pursuant to the distribution formula.

C. It is the intention of both parties that the sums specified in the Settlement Agreement do not constitute "back pay." Each Class Member will be solely responsible for making payment to the appropriate taxing authorities for all tax liability. The Notice sent to each Class Member will specify that each Class Member will be solely responsible for making payment to the appropriate taxing authorities and for all tax liability other than what already may have been withheld. The Release to each Class Member will also require Class Members accepting relief to release Class Counsel from any liability associated with any failure to withhold or contribute required amounts.

D. The Agency agrees that with respect to any Class Member who is retired before the Final Approval of this Settlement Agreement and who elects to accept a recomputed annuity in lieu of relief that might be available to him or her as Awards for Losses in Pay, Class Counsel will recompute such Class Member’s “high three” pursuant to the Distribution Formula. The Agency shall process the necessary paperwork to assure that the Office of Personnel Management can recompute such Class Member’s annuity in accordance with the re-computed high three. Any Class Member electing this provision shall notify both Class and Agency Counsel within 15 days of the final approval of this agreement. The Agency agrees to complete this process within 30 days of receipt of information from Class Counsel. The parties agree that each Class member shall be responsible for any increase in both his/her individual annuity contribution and the agency’s annuity contribution, which would be paid out of the Settlement Fund, either to reimburse the Agency for required contributions or directly to the Office of Personnel Management. Eligible class members shall not receive any additional back pay amount due to these calculations other than their share of the lump sum settlement amount determined according to the formula. The parties agree that OPM shall in accordance with law and regulation determine any entitlement to back annuity available to the retirees, and will provide directly to any eligible retiree any back annuity to which he/she is entitled. If for any reason OPM does not approve any portion of this provision of the Agreement, the parties agree that the Agency will not provide any additional relief to the Class; however, the class member for whom OPM denied a recomputed annuity shall then be entitled to the same relief provided to those class members who do not elect relief under this provision. Under no circumstances shall the $3,600,000.00 monetary relief amount be increased as a result of this or any other provision in this Agreement. Nothing in this agreement shall be construed as a waiver of any Class Member’s right to challenge OPM’s action in any appropriate administrative or judicial forum.

E. Of the total sum of three million six hundred thousand dollars ($3,600,000) stated in Part V A, one million dollars and no cents ($1,000,000.00) shall be paid as attorney fees, expenses and costs. Class Counsel shall inform the Agency of the amount of each of the two Agency payments set forth in Part V, A that constitute attorney fees, and of the separate bank account routing information for purposes of directing the attorney fee portion of the payment to a separate escrow account. Class Counsel will hold the attorney fee payment in escrow until the Effective Date of this agreement

VI. Withdraw of Other Actions

A. Consistent with EEOC regulation 29 C.F.R. § 1614.204(g)(4) and MD 110(8), this Settlement Agreement shall bind all members of the Class upon the Effective Date of the Settlement Agreement. Class Members who have filed complaints of discrimination against the Agency regarding the Administrative Class Complaints or the same issues raised therein shall, prior to receipt of any monetary relief in connection with this settlement, execute a release specifically waiving any claims for compensatory damages or any other claims the Class Members may have against the Agency during the time period covered by the Class Definition.

B. As a condition of payment, any Class Member who already has filed a claim or complaint in any judicial or administrative forum alleging that she or he was discriminated against solely on the bases of sex and age with regard to nurse pay between March 1993 and the date of Final Approval of the Settlement Agreement shall, within 60 days of the Effective Date of the Settlement Agreement, withdraw all claims and requests for relief. In the alternative, if such Class Member fails to withdraw any such claim, civil action, or other request for relief, such Class Member shall be determined to have consented to the withdrawal of such action by virtue of the Settlement Agreement.

VII. Compliance

A. If the Class Agent believes that the Agency has failed to comply with the terms of this Agreement with respect to any Class Member, she shall notify the Deputy Assistant Secretary, Office of Resolution Management (ORM), Department of Veterans Affairs, 810 Vermont Avenue, N.W., Washington, D.C. 20420, in writing, of the alleged noncompliance within 30 days of when the Class Agent knew or should have known of the alleged noncompliance and may request relief outlined in 29 C.F.R. § 1614.504(a).

B. In the event that the Class Agent provides notice of alleged noncompliance, the Agency shall resolve the matter and respond to the Class Agent in writing. If the Agency has not responded to the Class Agent, in writing, or if the Class Agent is not satisfied with the Agency’s attempt to resolve the matter, the Class Agent may appeal to the EEOC for a determination as to whether the Agency has complied with terms of this Agreement. The Class Agent may file such an appeal 35 days after she has served the Agency with the allegations of noncompliance, but must file an appeal within 30 days of her receipt of an Agency’s determination. The Class Agent must serve a copy of the appeal on the Agency at the address listed in paragraph III, and the Agency may submit a response to the EEOC.

C. Class Counsel shall cooperate with the Agency in all respects in the event the Class Agent files a notice of noncompliance and/or an appeal to the EEOC. Said cooperation shall include, but not be limited to, providing the Agency with documents deemed necessary be the Agency, and making any payments to individual Class Members under the herein Agreement if ORM or the EEOC determine that Class Counsel failed to send such payments to any individual Class Members.

D. The parties agree that the EEOC shall retain jurisdiction of this matter for the purposes of any enforcement matter.

VIII. Interpretation of the Settlement Agreement

A. The Settlement Agreement neither represents an admission of liability by, nor a finding of liability against, the Agency. The Settlement Agreement constitutes a joint effort by the parties and should not be construed against any party. The terms of the Settlement Agreement, the negotiations leading up to the Settlement Agreement, the data, documents or information exchanged between the parties in the course of settlement negotiations of this action, may not be offered, taken, construed, or introduced as evidence of liability or as an admission or statement of wrongdoing by the Agency either in this action or in any subsequent proceeding of any nature. However, such information exchanged between the parties as part of this action may be presented to the Administrative Judge by the parties to the Settlement Agreement to obtain the approval of this settlement or to oppose any petition to vacate or appeal of the settlement.

B. It is an express condition of the Settlement Agreement that the Class Agent and Class Members be bound by the Settlement Agreement. The Settlement Agreement is binding on all parties and their successors, assigns, representatives, and trustees and shall be null, void, and of no force or effect if the Administrative Judge does not approve the Settlement Agreement. The Settlement Agreement may be executed in one or more counterparts and each executed copy shall be deemed an original that shall be binding upon all parties to the Settlement Agreement. The waiver by any party hereto of any term, condition, or covenant of the Settlement Agreement or the breach of any term, condition, covenant, or representation herein, in any one instance, shall not operate as or be deemed to be a waiver of the right to enforce any other term, condition, or representation, nor shall any failure by any party at any time to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party's right at a later time to enforce or require performance of such provisions or of any provision hereof.

C. Should one or more terms of the Settlement Agreement subsequently be deemed unenforceable, the parties agree that the unaffected terms of this Settlement Agreement shall remain in effect. The Agency agrees to notify Class Counsel should any such change in law prevent the Agency from complying with any term of the Settlement Agreement. The Agency's obligation to comply with any term of the Settlement Agreement shall be suspended only upon order of the Administrative Judge, or the Office of Federal Operations or the Equal Employment Opportunity Commission or a court of competent jurisdiction.

D. In the event that changes in the law subsequent to the entry of the Settlement Agreement make any of its provisions contrary to law either as written or as applied, either party may apply to the EEOC for a modification of those provisions so that they comply with existing law.

AGREED

FOR THE CLASS:

______________________________
Frances Johnson-Feldmann

______________________________
Michael J. Kator
Kator, Parks & Weiser, P.L.L.C.

FOR THE AGENCY:

_______________________________
James J. Nocks, M.D.
Network Director, VISN 5

_______________________________
Michael Hogan
Acting Regional Counsel