Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 4, 2014

0120140600 (E.E.O.C. Dec. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120140600

Agency No. 1F-914-0013-13

DECISION
On November 29, 2013, Complainant filed an appeal from the Agency’s October 28, 2013
final decision concerning her equal employment opportunity (EEO) complaint alleging
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. The Commission
deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R.
§ 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND
Complainant began working for the Agency in 1983. In 1984, she became a Carrier. In 1989,
she suffered an on the job injury and could no longer perform her Carrier duties. Complainant
was given limited duty assignments until 2009, when pursuant to the National Reassessment
Process (NRP), her job offer was withdrawn because the work she was doing was deemed
“non essential.” She was sent home for four years in indefinite Leave Without Pay (LWOP)
status.

In 2013, Agency managers conducted a search for suitable work for Complainant to perform.
The only suitable work identified was outside of the Carrier craft and at a facility 30 miles
from Complainant’s home. Complainant accepted the offer of a rehabilitation position, and on
March 11, 2013, she began working at the Los Angeles Customer Care Center. She was
formally transferred into the Clerk craft and lost her Carrier craft seniority, but her salary was
“saved.”
0120140600

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On April 20, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (unspecified), disability, age (56), and
in reprisal for prior protected EEO activity with regard to her assignment at the Los Angeles
Customer Care Center. She claims that the agency did not look for suitable work within the
Sierra Coastal District, instead assigning her to a facility 30 miles from her home. She also
claims that she received lower level pay as a Clerk than she had as a Carrier.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). In its FAD, the Agency explained that it followed all the applicable procedures
in seeking to find suitable work for Complainant. Those responsible for finding the work deny
that Complainant’s protected classes played any role in their search. Complainant’s medical
restrictions were only considered insofar as it was necessary to evaluate her ability to perform
certain tasks in the search for available suitable work. Both responsible management officials
attested that the same job search process was applied for all the employees, who, like
Complainant, were being offered rehabilitation positions.

ANALYSIS AND FINDINGS
Upon review of the record, we find no evidence that the Agency discriminated against
Complainant when it transferred her into the Clerk craft and placed her into the position of
Customer Care Agent at the Los Angeles Customer Care Center. All individuals in
Complainant’s district for whom rehabilitation positions were being identified were treated
similarly, and the same procedures applied to all.

According to the Agency, Complainant did not submit an affidavit during the investigation of
this complaint. However, she submitted a lengthy statement on appeal explaining that she
wants to be compensated for all the benefits she allegedly lost when she was sent home and
denied work for four years. These benefits include full salary, seniority and leave accrual, and
retirement contributions. Another benefit she allegedly lost was qualifying for Family Medical
Leave Act upon her return to work because she did not reach the required 1260 hours of active
work when she was not working. We find that the relief she is seeking on appeal concerns her
being adversely affected by the NRP process in 2009, and the appropriate avenue for seeking
that relief is through her previously filed complaint (Agency No. 1F-914-0022-09) which was
subsumed into the McConnell class action. See Complainant v. United States Postal Serv.,
EEOC Appeal No. 0120141764 (Sept. 17, 2014); Complainant v. United States Postal Serv.

,
EEOC Appeal No. 0120100350 (March 25, 2010).
For the reasons set forth above, we AFFIRM the Agency’s final order.

0120140600

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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.

0120140600

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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

Date
December 4, 2014