0120131866
07-02-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131866
Hearing No. 480-2009-00062X
Agency No. 4E-890-0098-07
DECISION
On April 19, 2013, Complainant filed an appeal from the Agency's March 21, 2013 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Agency, in its supplemental investigation, provided evidence to support its determination that the instant complaint is not identical to the claims raised in a current class complaint, McConnell, et al. v. U.S. Postal Service (Agency No. 4B-140-0062-06).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier (Limited Duty Status) at the Agency's Meadow Mesa Post Office in North Las Vegas, Nevada.
On August 2, 2007, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, effective April 14, 2007, he was permanently reassigned to a Modified Clerk position at the James Brown Facility.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on
July 23, 2009. On July 31, 2009, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that he was subjected to discrimination as alleged. Complainant appealed the Agency's July 31, 2009 final order.
In EEOC Appeal No. 0120093648 (September 2, 2011), request for reconsideration denied, EEOC Request No. 0520120333 (December 11, 2012), the Commission noted that the disability claim raised in Complainant's complaint may be identical to one or more of the claims raised in the McConnell class action involving the National Reassessment Process (NRP). Specifically, the Commission noted that the record contained: (1) October 30, 2006 and November 13, 2006 emails in which the Manager, Customer Services discussed the "National Assessment Process;" and (2) comparator reassignment documentation containing "NRP P1_p24limiteddutymedupdate.doc" at the bottom of the form. The Commission found that there was insufficient information in the record to determine whether Complainant's claim fell within the McConnell class action. Therefore, the Commission vacated the Agency's July 31, 2009 final order and remanded the matter for a supplemental investigation. The Commission ordered the Agency to complete the following actions:
1. Supplement the record in order to determine whether the instant complaint is identical to the claims raised in the McConnell class action. Specifically, the Agency shall include evidence regarding the operational review that occurred at its Meadow Mesa Post Office that resulted in Complainant's reassignment to the James Brown Facility.
2. If the Agency determines that the instant complaint is not identical to the claims raised in the McConnell class action, the Agency shall re-issue its final order.
3. If the Agency determines that the instant complaint raises the same matter as the McConnell class action, the Agency is ordered to subsume the instant complaint into the McConnell class action.
Apparently, in response to the Commission's order, the record contains a March 12, 2013 email, where an EEO Investigator asked the District Assessment Team (DAT) Team Lead to identify the date on which the NRP commenced in the Nevada-Sierra District. On March 13, 2013, the DAT Team Lead responded, "July/August 2009."
On March 21, 2013, the Agency re-issued its final order originally issued on July 31, 2009. The Agency stated, in pertinent part, that it supplemented the record and determined that Complainant did not meet the criteria for the McConnell class action because the NRP was not implemented at the time of Complainant's complaint. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argued, among other things, that the Agency did not comply with the Commission's order because no further investigation occurred. In addition, Complainant argued that the October 30, 2006 and November 13, 2006 emails show that his reassignment was part of the NRP. Finally, Complainant requested that the Commission "put [him] into the NRP claim."
The Agency did not submit a statement or brief in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chapter 8, � III.C provides, in pertinent part, that "[a]n 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 be subsumed within the class complaint."
Upon review of the record, we find that the Agency failed to provide evidence to support its March 21, 2013 determination that Complainant's complaint is not identical to the claims raised in the McConnell class action. The Commission, in its previous decision, ordered the Agency to supplement the record on this issue and specifically instructed the Agency "to include evidence regarding the operational review that occurred at its Meadow Mesa Post Office that resulted in Complainant's reassignment to the James Brown Facility." The Agency, however, did not provide the requested information. Instead, the entirety of the Agency's supplemental investigation consists of a management official's unsworn statement to the EEO Investigator that the NRP did not begin in Complainant's district until July or August 2009. Because the Agency provided no other documentary or testimonial evidence on this issue, we find that the record does not support their determination that Complainant's reassignment did not fall under the NRP. The Agency has the burden of providing evidence and/or proof to support its final decisions. See Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). We find that it has not done so here.
Accordingly, Complainant's complaint is now subsumed within the McConnell class action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's March 21, 2013 final order and REMAND Complainant's complaint in accordance with the Order below.
ORDER
The Agency is ordered to subsume Complainant's complaint into the McConnell class action. See EEO MD-110, Ch. 8, � III(C). The Agency shall provide Complainant with notification that it is processing his complaint as subsumed within the class action. A copy of that notice shall also be provided to the Commission's Compliance Officer as noted 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
__7/2/14________________
Date
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0120131866
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131866