0120100993___0120100994
05-27-2010
Shenice Bruce and Mary Kay McDaniel, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Shenice Bruce and Mary Kay McDaniel,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal Nos. 0120100993 & 0120100994
Agency Nos. 1E661000709 & 1E6610008091
DECISION
Complainants filed timely appeals with the Equal Employment Opportunity
Commission (EEOC or Commission) from final agency decisions (FADs) dated
November 10, 2009 and December 1, 2009, dismissing their complaints 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.
The complainants are represented by the same representative. In a cover
letter accompanying both their information for pre-complaint counseling
forms (intake), the representative called the case a "class action"
"jointly" filed by them, and that they suffered the same violations and
were disparately treated from two male employees. The representative
wrote, however, that so no problems arose with the agency EEO program, the
agency could view each complainant as filing individually, if it must.
According to the counselor's report, the plant manager said the plant
the complainants work in is closing, people are being excessed, and like
all affected employees, both complainants got letters dated April 28,
2009, informing them that they were selected for the position of mail
handler, at the Kansas City, Kansas Bulk Mail Center, and that they were
required to undergo a medical assessment before being reassigned to the
mail handler craft.
The complainants' claims in intake were the same. They alleged that they
were discriminated against when on May 6, 2009, they took a physical exam
that required them to lift and carry weights when two male comparative
employees were not required to do this in their medical exams (in effect,
different physical requirements), and unlike the two male comparisons,
the complainants were required to have follow up medical examination(s).
They contended they were told that they could not keep their jobs, i.e.,
be fired, if they did not have the follow-up medical examination(s),
and one was scheduled during their prime-time annual leave vacations.
They later filed EEO complaints with the same claims as in their intake
forms.
The agency individually defined each complaint as alleging discrimination
based on sex (female) when on May 5, 2009, and subsequent dates, each
complainant was scheduled for a second physical exam to determine her
fitness for another craft. The complainants' representative wrote
the agency contesting the definition of the complaints, and asking
that it track the language in the complaints in characterizing them.
She complained that the agency did not make a sufficient effort to
schedule mediation, resulting in its denial. The agency replied with
a letter declining to change its characterization of the complaint.
After the investigation began, the complainants' representative wrote
the investigator asking how they should proceed without an accepted
issue that reflected their claims. Neither of her communications raised
class status.
Thereafter, the agency issued separate FADs dismissing both complaints.
According to the agency, on September 21, 2009, each complainant was
sent an affidavit package by the investigator requesting information.
The agency indicated that within each affidavit request was a notice
that if the complainant did not proceed with the complaint by providing
the information requested within 15 days of receipt, her complaint
may be dismissed for failure to cooperate. The records do not contain
copies of these notices. Suggesting the complainants did not provide
any information, and reasoning it had insufficient information to
adjudicate their complaints, the agency dismissed the complaints for
failure to cooperate.
On appeal, complainants ask that their cases be processed as a class
action, and argue that their cases originated when they visited the
same contractor physician as two male employees on May 6, 2009, but were
subject to a more comprehensive medical examination than the two males,
and had to go to a follow up visit(s), while the two males did not have
to do so. They contend they had to forfeit prime time vacation to undergo
follow-up medical examinations. They argue that their complaints were
incorrectly defined, and that they were denied mediation. In opposition
to the appeal, the agency argues that its final decisions should be
affirmed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of
a complaint where the agency has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request
within 15 days of its receipt, or the complainant's response does not
address the agency's request, provided that the request included a notice
of the proposed dismissal. The regulation further provides that, instead
of dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available. Generally, the
Commission has held that an agency should not dismiss a complaint when it
has sufficient information upon which to base an adjudication. See Ross
v. United States Postal Service, EEOC Request No. 05900693 (August 17,
1990); Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990). It is only in cases where the complainant has engaged
in delay or contumacious conduct and the record is insufficient to permit
adjudication that the Commission as allowed a complaint to be dismissed
for failure to cooperate. See Card v. United States Postal Service,
EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States
Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994).
We find that the agency has not shown that the complainant's
conduct rises to the level of being contumacious. Further, there was
sufficient information in the record for the agency to proceed, i.e.,
the complainants' described their claims in detail and named the same
two comparative employees.
We agree with the complainants that the agency's characterization
of their claims was incomplete. The agency defined the claim as the
complainants being scheduled for a second physical exam. The claim also
included the complainants being required to undergo a more comprehensive
physical exam than two male counterparts (in effect, different physical
requirements), being told they could not keep their jobs, i.e., be fired,
if they did not return for a follow-up examination(s), and a follow-up
medical examination being scheduled during their prime-time annual
leave vacations. The claims to be investigated will be set forth in
the order below.
Mediation is a voluntary program. The agency was free to decide not to
engage in mediation, after scheduling problems occurred, even if it was
at fault in the scheduling problems. If complainants are interested in
mediation, they can advise the agency's EEO office, but the agency is
not required to engage in mediation.
A complainant may move for class certification at any reasonable point in
the EEO process when it becomes apparent that there are class implications
to the claim raised in the individual complaint. 29 C.F.R. � 1614.204(b).
If the complainants move for class certification, the agency must suspend
processing of the individual claims for which class certification
was requested, and forward the complaint files to an EEOC hearings
unit so a determination can be made on whether to certify the class.
29 C.F.R. � 1614.204(d).
It is not clear whether the complainants wish to move for class
certification or have their individual complaints consolidated for joint
processing. If the complainants are only interested in having their
claims adjudicated, it is more likely than not they are seeking to have
their complaints consolidated for joint processing, since class actions
are for complaints where a much larger number of people are alleging a
discriminatory policy or practice that discriminates against the group.
Since the complainants have nearly identical claims and are represented
by the same person, the order below consolidates their two individual
complaints for joint processing. If the complainants move for class
certification on remand, the agency shall follow the requirements of 29
C.F.R. � 1614.204. On remand, the agency shall advise the complainants
about the class process.
The FADs dismissing the complaints are reversed.
ORDER
The agency is ordered to consolidate for joint processing the individual
complaints of Shenice Bruce (complaint 1E661000709) and May Kay
McDaniel (1E661000809). It shall process the claims that they were
discriminated against based on their sex (female) when on (1) May 6,
2009, they took a medical examination exam which was more comprehensive
than the medical examination taken by two male comparative employees
(in effect, different physical requirements), and required to have
follow up medical examinations(s) while above males had no follow-ups,
(2) they were told they could not keep their jobs, i.e., be fired, if they
did not return for follow up examination(s), and (3) a follow-up medical
examination was scheduled during their prime-time annual leave vacations,
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge
to the complainants that it has received these claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to both complainants copies of the investigative file and also shall
notify complainants 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 complainants
request a final decision without a hearing, the agency shall issue a final
decision within sixty (60) days of receipt of complainants' request.
Within 30 calendar days of this decision becoming final, the agency
shall explain to the complainants the meaning of a class complaint and
class complaint processing procedures. If the complainants move for
class certification in writing, the agency shall suspend processing of
the individual claims for which class certification was requested, and
forward the complaint files to an EEOC hearings unit so a determination
can be made on whether to certify the class and class processing.
29 C.F.R. � 1614.204(d).
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 (K1208)
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 (M1208)
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 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 (S0408)
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 (Z1008)
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
May 27, 2010
__________________
Date
1 The agency and appeal numbers for Shenise Bruce are, respectively,
0120100993 and 1E661000709. The agency and appeal numbers for Mary Kay
McDaniel are, respectively, 0120100994 and 1E661000809.
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3
0120100993
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100993 & 0120100994