0120093334
01-14-2010
Brenda F. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Brenda F. Allen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093334
Agency No. 4F-900-0301-071
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 30, 2009, dismissing her complaint of unlawful
employment discrimination alleging a violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
In an EEO complaint dated November 27, 2007, complainant alleged that
she was subjected to discrimination on the basis of physical disability2
when her overtime clock rings were deleted and she was not paid for
work performed because the agency took the position that she was not
allowed to work overtime as a permanent limited duty status employee.3
The agency conducted an investigation into the overtime claim and then
complainant requested a hearing before an EEOC Administrative Judge.
In its June 30, 2009 final action, the agency adopted the AJ's dismissal
of the hearing request based on a determination that complainant's
individual claim in the instant matter was identical to the claim
raised in a class complaint, Edmond Walker v. John E Potter, et. al.
Agency No. CC-800-0359-03, EEOC No. 320-A2-8390x. The agency indicated
that complainant's complaint would be held in abeyance pending the
possible certification of the class complaint. In August 2005, another
EEOC Administrative Judge granted class certification in Walker, which
defined the class as all permanent rehabilitation employees whose duty
hours were restricted (including overtime), from January 1, 2000 to the
present, allegedly in violation of the Rehabilitation Act 0f 1973.
On appeal, complainant argues that the agency has mishandled this case,
incorrectly considering it subsumed within the Walker class action.
As an initial matter, we note that the Commission 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. United States Postal Service, EEOC Request No. 05920101
(February 13, 1992). In addition, Equal Employment Opportunity Management
Directive-110, Chapter 8 � III9C) (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 properly held complainant's
allegation of disability discrimination in abeyance as subsumed within
the Walker class action as she alleged unlawful restrictions on overtime
earnings because of her status as permanent limited duty (rehabilitation)
employee. Accordingly, the agency's decision to hold complainant's
allegation of disability discrimination in abeyance is affirmed.
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
January 14, 2010
__________________
Date
1 The record indicates that this complaint was formerly designated by
Agency No. 4F-900-0296-07.
2 During EEO counseling complainant also asserted she was discriminated
against on the bases of race, sex and age. However, she appears to
have abandoned these claims when she filed her formal complaint, and the
agency's letter of acceptance indicates that it was only processing her
disability claim.
3 Complainant's complaint also contained another claim when she was
sent home in October 2007 and told there was no work available for her.
By letter from the agency dated April 8, 2008, this claim was severed from
her original complaint and held in abeyance as potentially subsumed in a
class complaint designated as Minnette Miles, et. al. v. United States
Postal Service (Agency No. 4F-900-0010-08) filed on November 6, 2007.
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0120093334
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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