0120112201
02-17-2012
Roger E. Stuckey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Roger E. Stuckey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120112201
Agency No. 4H-390-0005-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 3, 2011, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Modified Clerk at the Agency’s Larkin Smith Station
in Gulfport, Mississippi. On November 22, 2010, Complainant filed a
formal complaint alleging that the Agency subjected him and a class of
employees to discrimination on the bases of sex (male), disability (not
specified), age (48), and reprisal for prior protected EEO activity,
members of the class were adversely affected by being removed from
the installation where they normally work while injured carriers were
allowed to continue to work in their craft and installations where they
normally work. Complainant asserted that this occurred on September 10,
2010, October 2, 2010, and October 9, 2010.
The Agency defined the claim as, when on September 10, 2010, Complainant
was only allowed to use two hours of leave per day and subsequently
reassigned to another installation. The Agency dismissed the complaint
pursuant to 29 C.F.R. § 1614.107(a)(1) finding that the complaint at hand
was, in essence, the same claim as Complainant’s prior EEO complaint,
namely, Agency No. 4H-390-0026-10. The Agency noted that the previous
complaint’s claim of disability based discrimination was subsumed
in the McConnell class action, McConnell v. U.S. Postal Serv., Agency
No. 48-140-0062-06. The Agency found that Complainant merely tried
to resurrect his prior complaint outside of the McConnell class action.
The Agency found that Complainant’s two complaints involved the same
claim and, therefore, dismissed the instant matter.
CONTENSIONS ON APPEAL
Complainant appealed asserting that the instant complaint was not the same
claim has his prior EEO complaint. Complainant indicated that the claim
did not involve the McConnell class action for he was not alleging the
reassignment but the fact that he and other injured employees were not
permitted to perform the old assignments which are now being performed
by other employees. The Agency requested that the Commission affirm
the Agency’s dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
We note that in the prior complaint, Complainant asserted that he was
subjected to discrimination when on December 12, 2009, the hours of
Complainant’s limited duty position changed. However, in the instant
matter, Complainant asserted that events raised in instant complaint
occurred on September 10, 2010, October 2, 2010, and October 9, 2010.
As such, we find that the events raised in the instant matter are not
the same as the events raised in Complainant’s prior EEO complaint.
Complainant also alleged in his formal complaint that employees were
issued disciplinary action. The record includes a suspension issued to
Complainant in September 2010. We find that these events are outside
of the scope of the prior EEO complaint. Therefore, we conclude that
the Agency’s dismissal was not appropriate.
We note that Complainant has asserted that he and others were harmed
when employees were permitted to work in their assigned positions.
Further, they were removed from their position pursuant to the National
Reassessment Program (NRP). To the extent Complainant has indicated
that there was full time work to which he could have been reassigned, but
for the NRP, such a claim should be subsumed within the McConnell class
action. On May 30, 2008, an EEOC Administrative Judge (AJ) granted class
certification in McConnell et, al v. U.S. Postal Serv., 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.1
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 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. U.S. Postal
Serv., EEOC Appeal No. 0720080054 (January 14, 2010).
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 should hold complainant's claim
of disability discrimination in abeyance. Specifically, in his formal
complaint, Complainant alleged that the Agency took Complainant’s
prior assignment and gave it to other employees. Moreover, the records
reflect that Complainant was in limited duty position due to his medical
limitations. This claim of disability discrimination should be subsumed
within the McConnell, et al. class action.
We also note that Complainant has alleged that he was subjected to
discrimination based on age, sex, and reprisal. Such claims are outside
of the McConnell, et al. class action, and should be processed as ORDERED
below. In addition, Complainant was issued a suspension for failure to
follow instructions. There is no indication that the suspension was
issued pursuant to the NRP. Therefore, the suspension should also be
processed as a separate claim of discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the matter for further processing
in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (the suspension
issue as well as Complainant’s claim of discrimination on the bases
of age, sex, and reprisal) 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.
The Agency shall subsume Complainant’s disability claim regarding
the assignment in the McConnell, et. al class action. A copy of the
Agency’s letter of acknowledgment that the matter has been subsumed
by the class action shall be provided to the Compliance Officer as
referenced 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 (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 (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 17, 2012
__________________
Date
1 EEOC Hearing No. 520-2008-00053X.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120112201
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112201