0120100380
04-15-2011
Carrie J. Zimmee, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Carrie J. Zimmee,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100380
Agency No. 4F945019109
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 21, 2009, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Rehab Letter Carrier at the Agency's Concord Main Post Office
facility in Concord, California. On August 21, 2009, Complainant
filed a formal complaint alleging that the Agency subjected her to
discrimination on the basis of disability when: (1) she was forced to
take early retirement due to the National Reassessment Process (NRP);
(2) since November 2001, she performed the duties of a supervisor but
was not made a supervisor or paid as a supervisor: and (3) on June 4,
2009, she was moved to the Associate office.
In September 21, 2009, the Agency issued two decisions. In one (Decision
1), the Agency subsumed Complainant's forced retirement claim into the
McConnell class action law suit. In the second (Decision 2), which was
a partial acceptance/partial dismissal, the Agency dismissed the portion
of claim 2 that occurred before April 20, 2009, or 45 days from the date
Complainant contacted an EEO counselor. The Agency accepted claim 3.
In Decision 1, the Agency stated that Complainant's claim concerning
her alleged forced retirement and the National Reassessment Process
(NRP) was being held in abeyance pending the outcome of a related class
complaint. Specifically, the agency determined that the disability
claims raised in Complainant's complaint were identical to the claim(s)
raised in McConnell, et. al. v. United States Postal Service (Agency
No. 4B-140-0062-06). In 2004, the Agency began the development of the
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, 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,1 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 chose not 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. USPS, 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. United
States 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 correctly held Complainant's claim
of disability discrimination in abeyance. Specifically, in her formal
complaint, Complainant alleged that the Agency forced her to retire
because of the NRP. Moreover, the records reflect that complainant was
in a limited duty position. The claim related to Complainant's forced
retirement due to the NRP is properly subsumed within the McConnell,
et. al class action.
The Agency also indicated in Decision 2 that Complainant's remaining
claims are being processed separately under Agency complaint #
4F-945-0151-09. To the extent Complainant was appealing that decision,
her appeal was premature. Thus, the Commission finds that the Agency
properly determined that the claims related to supervisory tasks and
pay should be processed separately. The claim related to being moved
to the associate office should also be processed separately.
Accordingly, the agency's decision to hold complainant's claim of
disability discrimination in abeyance is AFFIRMED. The claim is now
subsumed in the McConnell class action. The remaining claims are properly
being processed under Agency Complaint # 4F-945-0151-09.
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
April 15, 2011
__________________
Date
1 EEOC Hearing No. 520-2008-00053X.
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0120100380
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100380