01a46069_r
04-06-2006
Sarah L. MacRae, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sarah L. MacRae v. United States Postal Service
01A46069
April 6, 2006
.
Sarah L. MacRae,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46069
Agency No. 1B-012-0019-97
EEOC Hearing No. 160-2003-8153X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
notice of final action dated August 11, 2004, concerning 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.
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 Mail Handler, filed a complaint dated January 29, 1997,
alleging that she was discriminated against based on her disability
(rotator cuff tear) when she was denied the opportunity to work overtime
since she was placed on limited duty on October 24, 1995, continuing to
December 7, 1996.
At the conclusion of the investigation, complainant requested a hearing
on her complaint before an EEOC Administrative Judge (AJ). The AJ issued
a decision without a hearing on July 25, 2000, finding no discrimination.
On August 1, 2000, the agency issued a final order fully implementing the
AJ's decision. Complainant filed an appeal from the agency's final order.
In McRae v. United States Postal Service, EEOC Appeal No. 01A05855
(March 14, 2002), the Commission vacated the agency's final order and
remanded the matter for a hearing before an EEOC AJ.
Thereafter, complainant's case was assigned to an AJ in the EEOC New York
District Office. On August 9, 2004, the AJ issued an Order Dismissing
Hearing Request finding that the matters raised in complainant's
complaint may come within the definition of the Walker class complaint
and remanding the complaint to the agency to hold the case in abeyance
pending adjudication of the class complaint.
The agency issued a notice of final action on August 11, 2004, 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 September 11, 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. First,
complainant alleges that she is not a member of the Walker class because
she is not a permanent rehabilitation employee. Complainant states that
she is a Level 4 Mail Handler and was provided limited Mail Handler duties
to accommodate her disability. Additionally, complainant states that
the substance of her claim is different from the Walker class complaint.
Complainant claims that the Walker class complaint alleges that the
agency improperly implemented a blanket policy of limiting permanent
rehabilitation employees with work related injuries to hours that
they were working when they were injured. Complainant states that
her complaint, in contrast, alleges that the agency discriminated
against her by unlawfully bypassing her on the overtime desired list.
Finally, complainant claims that the Walker class complaint concerns a
violation from January 1, 2000, and thereafter. Complainant notes that
her complaint involves allegations that predate the Walker case.
In response to complainant's appeal, the agency states that complainant
was injured on the job and accepted a limited duty assignment as a bulk
mail handler in October 1995. The agency explains that it expected
complainant to return to full duty, however, her medical restrictions
never improved and her position became a permanent rehabilitation
position on April 25, 1998. The agency states that complainant remained
in her permanent rehabilitation position until her retirement on January
30, 2004. The agency does not dispute that complainant's allegations
predate the filing of the Walker class complaint. The agency argues that
where complainant's claim arose prior to the certification in Walker,
it should be included in the class even if it arose and was filed prior
to the class certification. The agency contends that complainant's claim
of denial of overtime is identical to the claim in Walker and thus should
be subsumed in Walker.
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. Despite the
agency's argument on appeal, we find no evidence in the record to show
that complainant was a permanent rehabilitation employee under the
definition of the certified Walker class complaint. Furthermore, the
agency has not identified any evidence in the record to support their
assertion that complainant is a permanent rehabilitation employee.
Accordingly, the agency's final action 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
The agency shall request that the Hearings Unit of the appropriate EEOC
District Office schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC District Office within 15
calendar days of the date this decision becomes final for a decision
from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision in accordance
with 29 C.F.R. � 1614.110.
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
April 6, 2006
__________________
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.