0120111120
01-31-2012
Marilyn K. Robbins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Marilyn K. Robbins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120111120
Agency No. 4K-220-0103-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated November 15, 2010, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales and Services Associate at the Agency’s Prince William
Branch Post Office in Woodbridge, Virginia. On October 25, 2010,
Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (Caucasian), color (White),
national origin (not specified), sex (female), age (not specified), and
disability (not specified) when, on September 24, 2010, Complainant was
called into the Manager’s office after swiping her time card and hitting
the clock. Complainant indicated that the Manager and three others met
to let her know that, due to the National Reassessment Program (NRP),
it was determined that there was “no work available” and Complainant
was sent home.
The Agency determined that Complainant's claim of disability
discrimination falls within the pending class action, McConnell, et
al. v. U.S. Postal Serv., Agency Case No. 4B-140-0062-06. Thus, the
Agency determined Complainant's claim of disability discrimination would
be subsumed in the McConnell, et al. complaint.
In 2004, the Agency began the development of the 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. Further. McConnell claims 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. v. U.S. Postal Service, 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 into the following broader
complaint: (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 declined 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, et
al. v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (January 14, 2010).
In its decision, the Agency states that Complainant's complaint based on
disability was properly placed in abeyance pending the McConnell class
complaint. Moreover, the Agency argues that parallel processing of an
individual complaint and a class complaint arising out of the exact
same facts, would not serve the principle of judicial economy. Rather,
the Agency states it would result in unnecessary expenditure of Agency
resources and would potentially subject the Agency to conflicting
decisions and duplicative liability. The Agency notes that Complainant's
complaint; insofar as it is based on race, color, sex, national origin,
and age; is being processed as an individual complaint. Agency Decision,
November 15, 2010, at 1, footnote.
Complainant appealed asserting that she held a bid position which she
has performed with a reasonable accommodation. In essence, Complainant
argued that she was erroneously included in the NRP. The Agency requested
that the Commission affirm its decision to subsume Complainant’s claim
of disability-based discrimination and Complainant’s remaining bases
be processed as an individual complaint.
ANALYSIS AND FINDINGS
The Commission notes that it has previously held that a complainant
may appeal an agency decision to hold an individual complaint in
abeyance during the processing of a related class complaint. See Roos
v. U.S. Postal Serv., EEOC Request No. 05920101 (February 13, 1992). In
addition, Equal Employment Opportunity Management Directive-110, Chapter
8, §III(C) (November 9, 1999) provides, in relevant part, that “an
individual complaint that is filed before or after the class complaint
is filed and that comes within the definition of the class claim(s),
will not be dismissed but will be subsumed within the class complaint.”
Upon review, we find that the Agency correctly held Complainant's claim
of disability discrimination in abeyance. Complainant acknowledges
that she was injured and given a position in 2004. The record reveals
that on September 24, 2010, Complainant received an Employee Leave
Information Letter, Complete Day indicating that pursuant to the NRP it
was determined there were not enough available necessary tasks within
Complainant's medical restrictions to complete a full day of work.
Although Complainant argued that she should not have been included in the
NRP, the record indicated that she was sent home based on an assessment
made pursuant to the NRP. Therefore, we find Complainant's claim of
disability discrimination is properly subsumed within the McConnell,
et al. class action.
We also find that the Agency properly severed Complainant's claim of sex
discrimination and indicated that claim was being processed separately
under case number 4K-220-0108-10. That claim does not fall within the
scope of McConnell, et. al. and therefore is appropriately addressed
separately.
CONCLUSION
Accordingly, the Agency's final decision to hold Complainant's claim of
disability discrimination in abeyance and process the claim of sex, race,
color, national origin and age discrimination separately is AFFIRMED.
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 (November 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 (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you file a request to reconsider and also file a
civil action, 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
January 31, 2012
__________________
Date
2
0120111120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111120