0120122563
03-28-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122563
Hearing No. 570-2011-00120
Agency No. 1K221001310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 2, 2013, dismissing 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 Handler at the Agency's P&DC facility in Merrifield, Virginia.
On July 2, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability, age (58), and reprisal for prior protected EEO activity when, from February 18, 2010, and continuing, she was denied work; and on June 1, 2010, she was told to go home and not provided work.
The claims were investigated and the matter went to an EEOC Administrative Judge (AJ). The Agency filed a motion seeking the dismissal of the complaint because of a pending class action, McConnell et. al. v. United States Postal Service, (Agency No. 4B-140-0062-06). The AJ granted the Agency's motion and dismissed the hearing request.
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. 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 as: (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).
In its final decision in the present case, the Agency adopted the AJ's decision dismissing the hearing and stated that Complainant's formal complaint was being held in abeyance pending the outcome of the McConnell class complaint. Specifically, the Agency determined that the disability claims raised in Complainant's complaint were identical to the claim(s) raised in McConnell.
The instant appeal followed.
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 sent her home and failed to provide her with work within her medical restrictions. Moreover, the records reflect that Complainant was in a limited duty position due to her medical limitations. This claim of disability discrimination is properly subsumed within the McConnell class action.
However, we find that the Agency improperly held Complainant's claims of race, sex, age and reprisal in abeyance as well. Those bases are not part of the McConnell class action. Thus, Complainant's claims based on those bases are remanded for continued processing from the point where processing ceased.
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 claims on the basis of race, sex, age, and reprisal are REMANDED as set forth below.
ORDER
The Agency shall process the complaint from the point where processing ceased by submitting to the Hearings Unit of the appropriate EEOC field office the request for a hearing on Complainant's race, sex, age and reprisal claims within fifteen (15) calendar days of the date this decision becomes final. The Agency shall also transmit the complaint file, as well as a copy of this decision, to the Hearings Unit with the hearing request. Thereafter, an AJ 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 (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
March 28, 2014
__________________
Date
1 EEOC Hearing No. 520-2008-00053X.
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0120122563
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122563