0120101400
04-15-2011
Catherine Kung, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Catherine Kung,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101400
Agency No. 1F941001810
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 11, 2010, concerning her 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Processing Clerk at the Agency's SF P&DC facility in San Francisco,
California. On December 10, 2009, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases of
race (Asian), national origin (Chinese), disability (shoulder/cervical
strain), and age (64) when she was placed off work without pay.
In its final decision, the Agency stated that Complainant's formal
complaint was being held in abeyance pending the outcome of an appeal
of a certification decision in a class complaint. Specifically, the
Agency determined that the 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 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, 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 placed her off duty
without pay. Moreover, the records reflect that Complainant was in
limited duty position due to her medical limitations. This claim of
disability discrimination is properly subsumed within the McConnell,
et. al class action.
We also find, however, that the Agency improperly held in abeyance
Complainant's claims of discrimination on the bases of race, national
origin, and age because these claims do not fall within the scope of
McConnell, et. al.
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 Agency's decision to hold
in abeyance Complainant's claims of discrimination on the remaining
bases is REVERSED, and the claims are REMANDED to the Agency for further
processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant 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 Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant's request.
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 (K0610)
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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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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0120101400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101400