01a43539
10-17-2005
Linda A. Casey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda A. Casey v. United States Postal Service
01A43539
October 17, 2005
.
Linda A. Casey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43539
Agency No. 4E-640-0008-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated March 31, 2004, concerning her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency's decision to
place complainant's complaint in abeyance pending the disposition of
the Walker v. United States Postal Service class complaint was correct.
BACKGROUND
Complainant, a Rehabilitation Mail Handler, filed a complaint dated
December 4, 2002, alleging that she was discriminated against based on
her age (3/14/45), disability (back), and in reprisal for prior protected
activity when:
On September 17, 2002, complainant was required to write down all work
she performed in a day and to provide the times of each assignment;
On unspecified dates complainant was being harassed by management in an
attempt to get her to resign by taking away any meaningful work and by
making her appear unable to do any work of value;
Complainant's pay was cut when her day off was changed to Sunday which
resulted in her loss of Sunday premium;
�On November 29, 2002, [complainant] received a letter from the Injury
Compensation Office that contained errors in her annual base pay, did
not mention [her] losing Sunday premium, and spoke of overtime when
[complainant's] medical documentation limits [her] to working eight
hours a day, 40 hours a week, informing [her] of a rehabilitative job
that [she] was already doing as instructed in the Postmaster's letter
of August 29, 2002.�
In a June 2, 2003 letter, the agency partially accepted issues (2),
(3), and (4) of complainant's complaint for processing. The agency
dismissed issue (1), pursuant to the regulation set forth at 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency noted that
complainant and another rehabilitation employee were asked to write down
all work done in a given day and to record the time each assignment was
completed. The agency stated that complainant did not allege that she
suffered a harm as a result of the agency action. The agency claimed that
the supervisor's instructions were in the realm of supervisory authority.
Thus, the agency found issue (1) failed to state a claim.
Subsequently, on March 31, 2004, the agency issued a final decision
informing complainant that her individual EEO complaint, and all
processing thereof, would be held in abeyance until the Commission issued
a decision regarding certification of the Walker class complaint.
On April 22, 2004, complainant filed an appeal with the Commission
from the agency's decision to hold her complaint in abeyance pending
a decision regarding certification of the Walker class complaint.
On appeal, complainant argues that her complaint should not be subsumed
in the Walker class complaint since the issues in Walker are different
than the issues she raised. She states that she was injured at work and
thereafter suffered disparate treatment from the agency and was �kept
from meaningful jobs/hours and many more hostile work environment issues,
and lost pay.�
The record reveals that on May 29, 2002, Edmond C. Walker, the class
agent in Walker v. United States Postal Service, EEOC No. 320-A2-8390X,
filed a class complaint alleging that he and others within the agency were
discriminated against on the basis of disability. The class complaint
was forwarded to the EEOC Denver District Office for a decision on
certification. On December 12, 2003, the AJ assigned to the case issued
an Order directing the agency to �identify all those pending complaints
that raise the same issue as the Walker class complaint� and to �issue
a decision notifying [c]omplainants that their complaints will be held
in abeyance while awaiting the decision to accept or reject the class
complaint.�
On August 29, 2005, the EEOC AJ issued a decision certifying the following
class: all permanent rehabilitation employees whose duty hours have
been restricted, from January 1, 2000, to the present, allegedly in
violation of the Rehabilitation Act of 1973. The AJ noted that permanent
rehabilitation employee includes any rehabilitation program employee
whose agency employment records reflect an employee status code of LDC
69 and/or an employee status code of RC and/or RD.<1>
ANALYSIS AND FINDINGS
Upon review, we find that the agency failed to show that complainant's
complaint falls within the parameters of the Walker class complaint.
The certified Walker class consists of permanent rehabilitation
employees who had their duty hours restricted after January 1, 2000.
In the present case, complainant alleges that she was subjected to
harassment, received an inaccurate letter from the Injury Compensation
Office, and had her pay reduced when the agency changed her day off to
Sunday which resulted in her loss of Sunday premium pay. The record
contains no evidence or argument by the agency that the alleged agency
actions at issue restricted complainant's duty hours. Thus, we find
that complainant's complaint does not fall within the definition of the
Walker class as currently defined.<2>
Accordingly, the agency's final decision holding complainant's complaint
in abeyance is REVERSED and the individual complaint is REMANDED for
further processing in accordance with the Order listed below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 17, 2005
__________________
Date
1The AJ additionally noted that due to the lack
of discovery on the merits of the case, the full scope of the term �duty
hour restrictions� is not known. However, the AJ noted it is clear that
two specific types of restrictions have been identified by the class:
(1) restrictions limiting the number of hours generally worked; and (2)
duty hour restrictions which allegedly result in the denial of overtime.
2If the definition of the Walker class complaint is expanded in the
future, the agency may wish to rehold the current complaint in abeyance
if appropriate.