0120080876
02-16-2012
Kimberly Smarr-Hudson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Kimberly Smarr-Hudson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120080876
Agency No. 4H-300-0123-07
DECISION
On December 7, 2007, Complainant timely filed an appeal from
the Agency’s November 19, 2007, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For
the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant's allegation of disability
discrimination should be remanded to determine if it should be subsumed
into a pending class complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s North Atlanta Carrier facility in
Atlanta, Georgia. Report of Investigation (ROI), at 7. Complainant has
suffered from Bilateral Carpal Tunnel Syndrome, which causes numbness,
swelling, and pain in her hands. Id. at 10.
On February 17, 1998, Complainant suffered an on-the-job injury, which
aggravated her condition. Id. at 67. On September 7, 1999, to accommodate
Complainant for her condition, the Agency provided Complainant with a
Rehabilitation job offer for a Modified City Carrier position. Id. at
79. Complainant accepted the Modified City Carrier position. On July 30,
2003, the Agency amended Complainant’s Rehabilitation job offer for
the Modified City Carrier position. Id. at 91. On September 15, 2006,
after receiving documentation from Complainant’s doctor, the Agency
offered Complainant another Modified City Carrier position, also referred
to as a limited-duty position, which she accepted. Id. at 10.
On January 25, 2007, Complainant’s first level supervisor (S1) sent
home Complainant and all other limited-duty employees who had injured
on the job, instructing them that there was no work available for them
to perform. Id. at 12. S1 noted that management determined that there
was not sufficient work to accommodate Complainant and the other limited
duty employees whose restrictions limited their ability to perform the
functions of their jobs. Id. S1, in a January 25, 2007, letter sent to
all limited-duty employees, noted:
Due to operational considerations, we can no longer provide work within
your medical restrictions. You are being placed in a leave without pay
status effective immediately. You will remain in this status until you
have been released to full duty by your physician.
Id. at 142, 150, 152, 166.
Shortly after Complainant contacted an EEO counselor on February 14,
2007, the Agency instructed Complainant to return to work. Id. at
12. Complainant returned to work on February 20, 2007, and only worked
until February 23, 2007, because she reportedly had not been given
another modified job offer for her condition. Id. at 35. On February 26,
2007, the Agency notified Complainant that the Department of Labor (DOL)
would provide her with compensation for the time period that she was sent
home. Id. at 74. Complainant reportedly never received compensation from
the DOL as promised. Subsequently, On March 29, 2007, Complainant again
returned to work after her doctor approved the Agency’s March 1, 2007,
limited-duty job offer. Id. at 10.
On May 19, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability when on
January 25, 2007, she was sent home and told that no work was available
under her modified job offer. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). When Complainant did not request a hearing within the
time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued
a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.
The Agency found that Complainant failed to establish a prima facie case
of discrimination based on disability. Specifically, the Agency noted that
Complainant failed to establish that she was a person with a disability
that substantially limited her in a major life activity. The Agency
also noted that Complainant failed to establish that she had a record
of a disability. The Agency further noted that, assuming Complainant
established a prima facie case, it engaged in the interactive process
and provided her with a modified job offer. The Agency also noted that
Complainant did not suffer an adverse employment action because she
received a continuation of benefits from the DOL. Lastly, the Agency
noted that it had articulated legitimate, nondiscriminatory reasons for
it actions that Complainant did not show were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she established a prima facie case of
disability discrimination. Complainant contends that S1 admitted sending
all limited-duty employees home for an alleged lack of work. Complainant
also contends that the Agency’s contention that she suffered no damages
is without merit. In particular, Complainant contends that she was not
compensated by the DOL for the time period she was placed off work.
ANALYSIS AND FINDINGS
The Commission takes administrative notice that the claim raised
in the instant formal complaint is similar to claims raised in the
class complaint, McConnell, et. al. v. United States Postal Service
(Agency No. 4B-140-0062-06). In 2004, the Agency began the development
of the National Reassessment Process (NRP), an effort to standardize
the procedure used to assign work to injured-on-duty employees. In the
class complaint, McConnell claims that the Agency failed to engage in the
interactive process during the NRP in violation of the Rehabilitation
Act and further, the Agency allegedly failed to reasonably accommodate
class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class
certification in McConnell, et. al, which defined the class as all
permanent rehabilitation employees and limited duty employees at the
Agency who have been subjected to the NRP from May 5, 2006 to the present,
allegedly in violation of the Rehabilitation Act. The AJ defined the
McConnell claims as follows: (1) The NRP fails to provide a reasonable
accommodation (including allegations that the NRP “targets” disabled
employees, fails to include an interactive process, and improperly
withdraws existing accommodation); (2) The NRP creates a hostile work
environment; (3) The NRP wrongfully discloses medical information; and
(4) The NRP has an adverse impact on disabled employees. The Agency
chose not to implement the decision and appealed the matter to the
Commission. The Commission agreed with the AJ's definition of the class,
and the McConnell claims, as stated above. Accordingly, the Commission
reversed the Agency's final order rejecting the AJ's certification of the
class. McConnell v. USPS, EEOC Appeal No. 0720080054 (January 24, 2010).
Here, the record reflects that these are matters similar to the issues
identified in McConnell.
We note that Complainant asserts that the Manager of Injury Compensation,
District designee for the NRP, informed her that she was sent home as part
of the NRP and that the Postmaster had overstepped his authority. ROI,
at 36, 65. We note that the record contains no affidavits of this District
designee for the NRP. Also, there is no dispute that management sent all
limited-duty, injured-on-the-job employees home, telling them that there
was no work available under their physical restrictions. We also note
that the Agency’s final decision does not address the NRP. As such,
we find that there is not sufficient evidence in the record to determine
whether Complainant's claim of disability discrimination falls within the
McConnell class action. Therefore, the record must be supplemented with
documents regarding the Agency's reasons for informing Complainant that
no work was available. Once the record is further developed, the Agency
should determine whether Complainant's claim of disability discrimination
falls within the McConnell class action. If the matter falls within the
class action, the instant complaint should be subsumed. If not, then the
Agency should re-issue its final decision including its determination
why this matter does not fall within the McConnell class action.
CONCLUSION
After a review of the record in its entirety, the Agency's final decision
is VACATED and the complaint is REMANDED in accordance with the order
below.
ORDER
Within thirty (30) calendar days of the date that this decision becomes
final, the Agency is ORDERED to take the following action:
1. Supplement the record in order to determine whether the instant
complaint is identical to the claims raised in the McConnell class action.
2. If the Agency determines that Complainant's claim is not identical
to those raised in the McConnell class complaint, the Agency shall
re-issue its final decision. The Agency shall provide a copy of its
final decision, including its determination why this matter does not fall
within the McConnell class action to the Commission's Compliance Officer,
as referenced below.
3. If the Agency determines that the complaint raises the same matter
as the McConnell class complaint, the Agency is ordered to subsume the
instant formal complaint into the McConnell class complaint. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(MD-110), Chap. 8, § III(C) (Nov. 9, 1999). The Agency shall provide
Complainant with notification that the Agency has subsumed the complaint
within the class complaint. A copy of that notice will also be provided
to the Commission's Compliance Officer, as noted below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2012
Date
2
0120080876
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013