0120111982
08-17-2011
Joel M. Rose, III, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Joel M. Rose, III,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120111982
Agency No. 4H-320-0038-11
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD)
dated February 11, 2011, dismissing his 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 was
employed as a Modified Letter Carrier at the Agency’s Nobles Station
facility in Pensacola, FL. He filed a formal complaint dated January 8,
2011,1 alleging that the Agency subjected him to discrimination on the
basis of disability (back/shoulders) and reprisal for prior protected
EEO activity when:
1. on December 28, 2010 and continuing, he was denied work due to the
National Reassessment Program (NRP); and
2. on December 30, 2010, he was denied reconsideration with the District
Reasonable Accommodation Committee (DRAC).
Claim 1 regards the Agency sending Complainant a letter dated December
28, 2010, advising him that on December 3, 2010, a new job search was
conducted utilizing a medically updated CA-17 dated August 25, 2010,
2 and there was no work available for him within his current medical
restrictions. Claim 2 regards the Acting Manager of Human Resources for
the North Florida District sending Complainant a letter dated December 30,
2010, denying his request to reconsider a DRAC decision dated November
23, 2010. The Acting Manager wrote that on December 3, 2010, the NRP team
conducted another job search utilizing Complainant’s most recent CA-17,
and was unable to locate any work for him. He wrote that according to
DRAC, there were no vacant funded positions available for Complainant
within his medical restrictions, and he agreed with DRAC’s decision.
The Agency dismissed the complaint for stating the same claim as prior
complaint 1 (Agency number 4H-320-0113-10), dated December 22, 2010.
In Complaint 1, Complainant alleged, in relevant part, that he was
discriminated against based on his disability and in reprisal for prior
EEO activity when (a) since September 30, 2010 and ongoing, he was sent
home and told there was no work available; (b) on October 19, 2010, his
request for restoration was denied; and (c) on October 27, 2010, he was
denied reasonable accommodation.3 In dismissing complaint 4H-320-0038-11
(Complaint 2), the Agency reasoned that it was merely a warmed over
version of Complaint 1, which pertained to matters surrounding the NRP
and being accommodated. It also found that Complaint 2 failed to state
a claim because Complainant was not harmed.
On appeal, Complainant writes that the incidents in Complaint 2
occurred after the incidents in Complaint 1, and argues he was harmed.
In opposition to the appeal, the Agency urges the Commission to affirm
the FAD.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires an Agency to dismiss
a complaint that states the same claim that is pending before or has been
decided by the Agency or Commission. It has long been established that
"identical" does not mean "similar." The Commission has consistently
held that in order for a complaint to be dismissed as identical, the
elements of the complaint must be identical to the elements of the
prior complaint in time, place, incident, and parties. See Jackson
v. Dep’t of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996)
rev’d on other grounds EEOC Request No. 05960524 (Apr. 24, 1997).
The claims in Complaint 1 are similar to those in Complaint 2,
not identical. While Complainant has been out of work since on or
about September 30, 2010, the Agency’s letter of December 28, 2010,
constituted a new alleged denial of reasonable accommodation because
the Agency conducted a new job search and again did not accommodate
Complainant with work within his medical limitations. We add that
the Agency utilized updated medical documentation in conducting this
new search. We find that Complainant’s claim about the letter dated
December 30, 2010 is about the Agency’s reiteration of its December
28, 2010, denial. The complaint states a claim because Complainant is
alleging he was not reasonably accommodated with employment within his
medical limitations.
The Commission takes judicial notice here, that the disability claim
raised in Complainant's complaint is identical to at least one of the
claims raised in the class complaint, McConnell, et. al. v.United States
Postal Service (Agency No. 4B-140-0062-06). Commission records indicate
that 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 (Hearing No. 520-2008-00053X) 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.
McConnell v. United States Postal Service, EEOC Appeal No. 0720080054
(Jan. 14, 2010).
Upon review of the record in this matter, the Commission finds that the
Agency improperly dismissed Complainant's complaint. The Commission
further finds that Complainant's disability claim is more properly
analyzed as part of the broader McConnell class complaint. Accordingly,
Complainant's disability claim is now subsumed with the McConnell class
action. Complainant’s claim of reprisal discrimination does not fall
within the scope of McConnell, and must be processed in accordance with
the order below.
The Agency’s decision to dismiss Complainant’s complaint is REVERSED,
and the complaint is REMANDED in accordance with the order below.
ORDER
The Agency is ordered to subsume the disability claim4 in the instant
complaint into the McConnell class action. See Equal Employment
Opportunity Management Directive-110, Chapter 8, § III(C) (November 9,
1999). The Agency shall provide Complainant with notification that it
is processing the disability claim as subsumed within the class action. A
copy of that notice shall also be provided to the Commission's Compliance
Officer as noted below.
The Agency is ordered to process the reprisal claim in Complainant’s
complaint in accordance with 29 C.F.R. § 1614.108 et seq. The Agency
shall acknowledge to the Complainant that it has received the reprisal
claim within thirty (30) calendar days of the date this decision
becomes final. A copy of the Agency’s letter of acknowledgment to
Complainant on the reprisal claim 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 (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
August 17, 2011
__________________
Date
1 Complainant received the notice of right to file the complaint on
January 27, 2011, but for some reason dated his complaint January 8, 2011.
The complaint was postmarked January 31, 2011.
2 This is an Office of Workers’ Compensation (OWCP) form which solicits
information from the health care provider on medical limitations.
3 In Rose v. United States Postal Service (Southeast Area), EEOC Appeal
No. 0120111471 (July 11, 2011), the Commission affirmed the Agency’s
dismissal of Complaint 1 because Complainant elected to pursue the
same claims in the Merit Systems Protection Board (MSPB) process.
The Commission found that Complainant’s withdrawal of his MSPB appeal
with prejudice did not negate his prior election.
4 On both the disability and reprisal claims, we find Complainant’s
claim about the December 30, 2010, letter is actually a reiteration of
his claim on the December 28, 2010, denial of work.
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0120111982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111982