01a46176
04-29-2005
Thomas J. D'Andrea, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas J. D'Andrea, Jr., v. United States Postal Service
01A46176
04-29-05
.
Thomas J. D'Andrea, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46176
Agency No. 4B-018-0049-01
Hearing No. 160-2004-00152X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission REVERSES
the agency's final order.
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 action was correct.
BACKGROUND
Complainant is a Letter Carrier at the agency's Worcester, Massachusetts
Post Office. He filed a complaint against the agency alleging that
he was discriminated against based on sex (male), disability (C8 - T1
cervical radiculopathy and myofascial syndrome) and in retaliation for
engaging in prior EEO activity when: (1) since February 10, 2000, and
continuing, he was constantly under attack concerning job performance,
and threats of termination; (2) since January 22, 2001, he has been
denied overtime opportunities; (3) on March 5, 2001, he was advised
that he could no longer drive postal vehicles; (4) on June 1, 2001,
he was spoken to regarding his attendance and sick leave usage; (5)
on June 8, 2001, he was instructed to perform data input; and (6) on
April 19, 2001, his request for leave form 3971 was disapproved by his
supervisor per the instructions from [another] supervisor.
The complainant also claimed that he was subjected to discriminatory
harassment based on disability and in retaliation for engaging in prior
EEO activity when: (1) on September 13, 2001, he was assigned to guard
the garage door for his entire shift until further notice; and (2) on
September 19, 2001, he was asked to learn computer formatting, which is
beyond his medical limitations.
At the conclusion of the agency's investigation in October 2002,
complainant was provided a copy of the investigative file. Complainant
requested a hearing before an EEOC Administrative Judge (AJ).
On August 19, 2002, Edmond C. Walker, the class agent in Walker
v. United States Postal Service, EEOC No. 320-A2-8390X (the Walker
class complaint), filed a complaint alleging that, since April 2000,
the agency discriminated against individuals with disabilities by:
1. Placing disabled individuals in permanent rehabilitation positions
without engaging in the interactive process as required by law;
2. Restricting disabled individuals who are placed in permanent
rehabilitation [sic] to limited work hours without any medical
justification and without consulting the individual with a disability;
3. Fail[ing] to allow individuals with a disability, who have been
placed in permanent rehabilitation positions, to work the number of
hours determined appropriate by the individual and his/her physician
and which are available; and
4. Fail[ing] to allow individuals with a disability, who have been placed
in permanent rehabilitation positions, to use assistive devices in the
workplace to accommodate their disabilities, including but not limited
to, electric scooters, notwithstanding that said assistive devices pose
no threat to safety or inconvenient [sic] in the workplace.<1>
On December 12, 2003, an EEOC Administrative Judge (AJ-1) issued a
decision concerning the Walker class complaint. AJ-1 ordered the agency
to �identify all those pending complaints that raise the same issue as
the Walker class complaint during the time frame encompassed by the
Walker class complaint, January 1, 2000, to the present.� For those
complaints that had already been forwarded to an Administrative Judge,
AJ-1 ruled that they be �placed into abeyance by the Administrative
Judge assigned to the case . . . .�
On July 21, 2004, the agency filed a motion to consolidate complainant's
complaint with the Walker class action and to hold the matter in abeyance.
Although complainant opposed the agency's motion, on August 10, 2004,
AJ-2, the Administrative Judge assigned to complainant's case, issued
an order dismissing complainant's request for a hearing and remanding
the complaint to the agency to hold in abeyance pending adjudication of
the Walker class complaint. AJ-2 defined the potential class as �all
permanent rehabilitation employees whose work hours have been restricted
from January 1, 2000, to the present allegedly in violation of the
Rehabilitation Act.� AJ-2 found that �[a] review of the allegations
in the above captioned complaint reveals that the matters presented may
come within the definition of the potential class complaint and may be
subsumed within the class.� On August 16, 2004, the agency issued a
decision implementing AJ-2's decision. This appeal followed.
ANALYSIS AND FINDINGS
For the reasons that follow, we find that complainant's complaint does
not fall within the parameters of the Walker class action. Among other
contentions raised on appeal by complainant's attorney is that complainant
is not a permanent rehabilitation employee. According to complainant's
brief, he is a permanent limited duty City Letter Carrier, and has been
provided limited duties to accommodate his disability.
In its July 21, 2004 motion, the agency represented to AJ-2 that,
�complainant is and has been in permanent rehabilitation positions since
at least 1990.� As support for its contention, the agency provided
AJ-2 with a January 13, 1990 letter to complainant. In the letter,
complainant, who is referred to as a �full-time permanent limited duty
Letter Regular Carrier,� is informed that because of a change to �his
labor distribution code from 21 to 69, and on the recommendation of the
Health Unit,� his regular schedule was being changed. The letter goes
on to set forth the changes to complainant's work hours, and to indicate
these schedule changes were permanent. There is nothing in the letter
that indicates that complainant was being placed in a rehabilitation
position, however. Complainant's attorney notes the lack of evidence
provided by the agency in its motion or cited in its final action.
Notwithstanding its representations to AJ-2 in its motion, the agency,
on appeal, now �takes no position on the merits of [complainant's] appeal
other than to reiterate that all actions taken by the agency were in full
compliance with [AJ-1's] order.� The agency further maintains that,
�to the extent appellant challenges the aforementioned process or the
contents of the AJ's order, the agency offers no response.�
We find that AJ-2's determination that complainant's complaint �may
come within the definition of the potential class complaint and may be
subsumed within the class,� was based on his reliance on the agency's
representations. Apparently, the agency is no longer willing to make
those representations. In light of the agency's current posture,
we find nothing in the record to rebut complainant's claim that he is
not a permanent rehabilitation employee. Therefore, after a careful
review of the record, including complainant's arguments on appeal, the
agency's response, and arguments and evidence not specifically discussed
in this decision, the Commission reverses the agency's final action and
remands the matter to the agency in accordance with this decision and
the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. 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 Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action 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
____04-29-05______________
Date
1According to the agency, Mr. Walker voluntarily withdrew allegations
(1) and (4).