0120103482
12-08-2010
Bruce D. Jenkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Bruce D. Jenkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120103482
Agency No. 4E-852-0069-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated August 16, 2010, concerning 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and disability (back injury) when: on May 21, 2010, Complainant was issued an "Employee Leave Information Letter, Partial Day" and ordered to case and pull down mail a few hours a day due to the National Reassessment Process (NRP) which he believed violated his medical restrictions.
The Agency determined that the portion of Complainant's complaint citing disability as a basis of discrimination falls within the pending class action, McConnell v. U.S. Postal Service, Agency Case No. 4B-140-0062-06. Thus, the Agency determined Complainant's claim that as a result of the NRP he was ordered to work in violation of his medical restrictions would be subsumed in the McConnell complaint. The Agency accepted Complainant's complaint based on race and sex and assigned this portion of the complaint Agency Case No. 4E-852-0069-10.
In 2004, the Agency began the development of the National Reassessment Process (NRP), an effort to "standardize" the procedure used to assign work to injured-on-duty employees. In the class complaint, McConnell claims that the Agency failed to engage in the interactive process during the NRP in violation of the Rehabilitation Act. Further, McConnell claims the Agency allegedly failed to reasonably accommodate class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class certification in McConnell et. al v. U.S. Postal Service, 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. 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 declined 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 Service, EEOC Appeal No. 0720080054 (January 14, 2010).
ANALYSIS AND FINDINGS
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 Service, 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 properly held Complainant's claim of disability discrimination in abeyance. Specifically, in his formal complaint, Complainant alleged that the Agency discriminated against him based on his disability when it forced him to work in violation of his medical restrictions. Moreover, the records reflect that Complainant was in a limited duty position due to his medical limitations. Specifically, the record contains a May 26, 2010 letter informing Complainant that based on the results of a search for "necessary tasks meeting [his] medical restrictions" pursuant to the National Reassessment Process, Phase 2, Limited Duty, the Agency has been unable to identify enough available necessary tasks within his medical restrictions in order for Complainant to complete a full day of work. The letter informed Complainant that he would have to complete a PS Form 3971 for the remainder of his workday and select COP (if eligible), leave, or LWOP-IOD.
We find Complainant's claim of disability discrimination is properly subsumed within the McConnell class action. We also find that the Agency properly continued processing Complainant's claims of discrimination on the bases of race and sex because these claims do not fall within the scope of McConnell.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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 (S0610)
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 (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
12/8/10
__________________
Date
2
0120103482
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103482