FRANCES JOHNSON-FELDMANN,
Class Agent,

v.

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Agency.

EEOC Case No. 100-A0-7234X; Agency Case Nos. 93-2634 et al.

October 17, 2002

NOTICE OF SETTLEMENT OF CLASS ACTION AND RIGHT TO SHARE IN SETTLEMENT FUND

TO: All nurses employed between January 1, 1993 and the present as Senior Grade (later Grade III and IV) Registered Nurses at the District of Columbia Veterans Administration Medical Center who are female and/or 40 years of age or older during the time of such employment.

FROM: Michael Hogan, Acting Regional Counsel, Office of Regional Counsel, Department of Veterans Affairs, 1722 Eye Street, N.W., 3rd Floor, Washington, D.C. 20421.
Laura Stefani, Class Counsel, Kator, Parks & Weiser, P.L.L.C., 1020 19th Street, N.W. Washington, DC 20036.

PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION COMPLAINT AND SETTLEMENT AGREEMENT.

OVERVIEW

Purpose of This Notice.

1. This notice is given pursuant to the EEOC’s regulations, 29 C.F.R. § 1614.204. The purpose is to advise you of a settlement with the Department of Veterans Affairs, Washington Medical Center (“the Settlement”) in the above-captioned complaint, dated October 2, 2002. The Settlement will affect the rights of all Class Members. This Notice describes rights you may have under the Settlement and what steps you may need to take.

Reasons for the Settlement

2. The Settlement provides a substantial benefit to the Class now rather than later. The parties disagreed on both liability and damages, and do not agree on the damages the Class would have recovered if it had prevailed. Had the parties continued the litigation, the Class would have been subjected to numerous uncertainties, such as the risk of potential unfavorable outcomes of the hearing or any appeals, and the length of time it would take to obtain a final decision and any resulting payment.

3. Class Counsel, the Class Agent and the Department of Veterans Affairs, Washington Medical Center engaged in significant negotiations concerning key liability and damages issues underlying the claims and defenses in this case. These negotiations, done with the assistance of a private mediator highly experienced in EEOC litigation, have produced the Settlement.

Class Recovery under the Settlement

4. The Settlement Agreement, which is attached, provides that the Department of Veterans Affairs will pay $3.6 million to the Class in two payments. Class Counsel, and not the Department of Veterans Affairs, will distribute funds pursuant to a formula, attached as Appendix A to the Settlement Agreement. This formula seeks generally to allocate the recovery in proportion to the injury suffered by each Class Member as well as his/her contributions to the litigation efforts. The Settlement also provides for non-monetary relief, as explained in ¶ 11, and allows retirees an option of obtaining re-computed annuities.

5. The exact amount that each Class Member will receive cannot be determined at this point because it depends on the number of Class Members who choose to accept the monetary allocation and the number who elect the retirement option.

Statement of Attorney Fees and Costs

6. The Settlement Agreement provides that $1 million of the settlement amount will be paid as attorneys fees, costs and expenses in this matter. In addition to attorney fees for Class Counsel’s continuing efforts in this case since 1993, this payment includes payment for the services of two expert witnesses and their staff, the cost of numerous deposition transcripts, travel and related expenses, and all attorney fees and costs associated with Class Counsel’s role in the implementation of the Settlement Agreement over an estimated eighteen more months.

Further Information

7. The EEOC cannot provide you with legal advice. You can obtain further information regarding the case and this Notice by contacting Class Counsel Laura Stefani and Michael J. Kator at Kator, Parks & Weiser, P.L.L.C., 1020 19th Street, N.W., Suite 350, Washington, DC 20036, Telephone (202) 898-4800, e-mail lstefani@katorparks.com and mkator@katorparks.com. Class Counsel will conduct informational meetings for class members at the following dates and locations:

November 13, 2002 11:30 am - 1:30 pm Dental Conference Room, WASDCVAMC
November 14, 2002 4:00 pm - 6:00 pm Dental Conference Room, WASDCVAMC

Class Counsel may post additional information on its website at www.katorparks.com. If you believe you need independent advice about any individual claims you may have or about any other implications of the settlement, you may wish to consult your own attorney.

BACKGROUND OF THE LITIGATION

8. Senior grade nurses filed two sets of EEO complaints in 1993 asserting that the Department of Veterans Affairs, Washington Medical Center discriminated against them because of their gender (female) and/or age (40 or older) in the implementation of the Nurse Pay Act and the 1993 nurse conversion. Grade III and VI nurses filed a similar set of EEO complaints in 1995.

9. In 1995, an EEOC administrative judge recommended that the 1993 complaints be certified as a Class Action. The Department of Veterans Affairs rejected this recommendation. The Class Agent appealed to the EEOC’s Office of Federal Operations in 1995, seeking reversal of the Agency’s decision. In August 1997, the EEOC’s Office of Federal Operations reversed the Agency’s decision. The Agency then sought reconsideration from the Commission, which was denied in September 1999. In January 2002, the EEOC assigned the case to an administrative judge for a hearing.

10. Since January 2002, the parties have conducted and completed extensive research, discovery and investigation, including: review and analysis of over fifteen thousand documents; interviews and/or depositions of over a dozen witnesses; and consultation with salary survey, economic, statistical and damages experts retained by Class Counsel. Class Counsel also filed a motion to expand the class to include the 1995 complaints, which had not been investigated. The parties also prepared prehearing statements, exhibits and witnesses for hearing, scheduled to begin on September 30, 2002.

THE SETTLEMENT

11. The law and regulations have changed regarding the nurse salary survey process, and the VA now must give nurses a salary increase at least equal to that given to GS employees. The Settlement Agreement provides for non-monetary relief to Class Members, such as the Agency’s agreement that its future surveys are valid and non-discriminatory. The Agreement also provides the opportunity for Class Counsel to meet with the new salary survey manager and to comment upon the proposed survey method.

12. The Settlement Agreement also provides for $2.6 million in monetary relief for Class Members. Pursuant to the Settlement Agreement, you may not “opt out” of this Settlement Agreement and continue to pursue your claims independently. However, you may elect to not receive the monetary relief provided by this Settlement Agreement. Any monetary relief that is unclaimed or rejected will be reallocated to the participating Class Members pursuant to the distribution formula.

13. Class Members who have filed complaints of discrimination against the Agency regarding the same issues raised in this case shall, prior to receipt of any monetary relief in connection with this settlement, execute a release specifically waiving any claims for damages. They must also withdraw these claims. If a Class Member fails to withdraw such a claim, he/she shall be deemed to have consented to the withdrawal of such action by virtue of the Settlement Agreement.

14. The Settlement must be approved by the Administrative Judge pursuant to the EEOC’s regulations, 29 C.F.R. §1614.204. The Settlement will become effective when the Administrative Judge issues a decision approving the Settlement, and all appeals have been finally determined or the time for filing appeals has expired (the “Effective Date”).

15. Each Class Member will be solely responsible for making payment to the appropriate taxing authorities for all tax liability. The parties specifically intend that all payments made to Class Members pursuant to this Settlement Agreement represent compensatory damages and not wages.

16. In order to receive a monetary award, each Class Member must execute a Verification of Claim and Release. The Verification of Claim will be prepared by Class Counsel and sent to each Class Member after the Agreement has been finally approved. Each Class Member will be required to verify or correct the information provided and attest to the applicable elements of the formula.

RIGHTS OF CLASS MEMBERS

17. If you have an objection to the Settlement Agreement because you believe it benefits only the class agent, or is otherwise not fair, adequate and reasonable to the class as a whole, you may present that objection in writing to: Administrative Judge Evelyn M. Gunn, Equal Employment Opportunity Commission, Washington Field Office, 1400 L Street, Suite 200, Washington, D.C. 20005, postmarked NO LATER THAN NOVEMBER 30, 2002. You must also send a copy of any objection to Laura Stefani, Class Counsel, Kator, Parks & Weiser, P.L.L.C., 1020 19th Street, NW Washington, DC 20036 and to Michael Hogan, Acting Regional Counsel, Office of Regional Counsel, Department of Veterans Affairs, 1722 Eye Street, N.W., 3rd Floor, Washington, D.C. 20421. If you do not present your objections during this time period, you waive your opportunity to object or appeal. Your objection must: a) show proof that you are a member of the class; b) state the basis for your objection; and c) include any documentation in support of your objection.
18. NOTICE OF RIGHTS (AGE DISCRIMINATION). In compliance with the requirements of the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act, you are hereby advised of the following: You are advised to consult with counsel before signing and delivering any verification and release of claims. However, the decision whether to consult with an attorney rests with you. You are advised to read the entire Agreement and to seek clarification of any provision(s) you do not fully understand before signing a verification and release. You are advised that you have not waived any rights or claims that may arise after the date of the Agreement. You are advised that you have not waived any rights or claims to benefits to which you are entitled, except as expressly provided in the terms of the Agreement. You are advised that you have twenty-one (21) days from the date of receipt of this Agreement to consider its terms. Should the you sign a verification and release under this Agreement before the twenty-first (21st) day, your 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. You are advised that the Class Agent 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

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.