0120110431
03-11-2011
Karen L. Crain, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Karen L. Crain,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110431
Agency No. 4H-370-0129-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated September 20, 2010, 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. For the following reasons, the Commission MODIFIES the Agency's final decision.
BACKGROUND
Complainant initiated contact with an EEO Counselor on July 13, 2010, alleging she was subjected to discrimination based on disability (left ankle injury) and in retaliation for prior protected EEO activity when she was subjected to harassment because: (1) on June 19, 2010, she was given a modified job offer which included walking requirements which were outside of her medical restrictions; (2) in July 2010, she received two disciplinary actions after she signed a modified job offer1; and (3) on July 19, 2010, she was assigned back to carrying her regular route (1615) which included dismounts which was against her medical restrictions. August 12, 2010 Notice of Right to File.
Thereafter, on August 29, 2010, Complainant filed a formal complaint on the same matters identified during counseling. Additionally, in her formal complaint, Complainant added the basis of age (over 40).
On September 20, 2010, the Agency notified Complainant that it was holding the disability portion of her complaint in abeyance. The Agency informed Complainant that it would process the remaining portions of her complaint under Agency Case No. 4H-370-0162-10. On October 12, 2010, the Agency issued a final decision on Agency Case No. 4H-370-0162-10 concerning her claim that she was subjected to discrimination based on age and in retaliation for protected EEO when: (A) on July 22, 2010, Complainant was given an Investigative Interview and subsequently issued a Letter of Warning which was reduced to an official discussion; and (B) on August 5, 2010, Complainant was issued a Letter of Warning which was reduced to an official discussion. Following her receipt of the Agency's final decision, Complainant filed an appeal with the Commission which is currently pending under EEOC Appeal No. 0120110669.
The Agency determined that Complainant's claim of disability discrimination falls within the pending class action, McConnell, et al. v. U.S. Postal Service, Agency Case No. 4B-140-0062-06. Thus, the Agency determined Complainant's claim of disability discrimination would be subsumed in the McConnell complaint.
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, McConnell claims 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. v. U.S. Postal Service, 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 declined 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, et al. v. U.S. Postal Service, EEOC Appeal No. 0720080054 (January 14, 2010).
On appeal, Complainant states that she was told by the NRP Representative that she was not in the National Reassessment Process. Complainant notes that her Limited Duty Modified Job offer dated June 25, 2010, under part "IV. Documentation" identifies her as an MMI (Maximum Medical Improvement) employee that has not gone through the NPR Phase 2 MMI Process. However, she states that she was issued an "NRP Phase 2 EE Employee Leave Information Letter, Partial Day" on June 25, 2010. Complainant notes she also received a Limited Duty Modified Job offer on August 10, 2010, stating under "IV. Documentation" she was an MMI employee that has not gone through the NPR Phase 2 MMI process. Additionally, Complainant acknowledges receiving a letter dated July 1, 2010, from the USPS Law Department notifying her of the McConnell class complaint and stating that she is a member of the class if she is or was a permanent rehabilitation or limited duty employee of the Postal Service who was subjected to the NRP between May 5, 2006, and the present.
In response to Complainant's appeal, the Agency states Complainant's complaint of discrimination based on disability was properly placed in abeyance under the pending McConnell class complaint. Moreover, the Agency argues that parallel processing of an individual complaint and a class complaint arising out of the exact same facts, would not serve the principle of judicial economy. Rather, the Agency states it would result in unnecessary expenditure of Agency resources and would potentially subject the Agency to conflicting decisions and duplicative liability.
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. U.S. 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 properly held Complainant's claim of disability discrimination in abeyance. Specifically, we note the present complaint concerns Complainant's allegation that the Agency subjected her to discrimination on the bases of disability, age, and in retaliation for protected EEO activity when: (1) on June 19, 2010, she was given a modified job offer which included walking requirements which were outside of her medical restrictions, and (3) on July 19, 2010, she was assigned back to carrying her regular route (1615) which included dismounts which was against her medical restrictions. The record reveals that on June 25, 2010, Complainant received a Limited Duty Modified Job Offer stating that she is being given an interim assignment until she is reassessed under the NRP Phase 2 MMI process. Complainant also received a June 25, 2010 Employee Leave Information Letter, Partial Day which advised Complainant of leave options available pursuant to the National Reassessment Process (NRP), Phase 2, Limited Duty. We note that the McConnell class includes claims that the NRP fails to provide a reasonable accommodation, fails to include an interactive process, and improperly withdraws existing accommodation. As Complainant's complaint concerns a claim that as a result of the NRP she was given modified job offers that violated her medical restrictions, we find Complainant's claim of disability discrimination is properly subsumed within the McConnell class action.
Moreover, we find that Complainant's formal complaint also included allegations of discrimination based on age and in retaliation for protected activity. Specifically, Complainant alleged that she was subjected to discrimination based on age and in retaliation for protected EEO when: (1) on June 19, 2010, she was given a modified job offer which included walking requirements which were outside of her medical restrictions; and (3) on July 19, 2010, she was assigned back to carrying her regular route (1615) which included dismounts which was against her medical restrictions. Although the Agency continued processing Complainant's complaint of age and reprisal discrimination concerning the two July 2010 disciplinary actions Complainant identified in issue (2), we note there is no indication the Agency processed Complainant's claims of discrimination based on age and reprisal with regard to issues (1) and (3). Therefore, on remand, the Agency shall process these claims accordingly.
CONCLUSION
The Agency's final decision to hold Complainant's disability claim in abeyance is AFFIRMED. The Agency's decision regarding the claim of age and reprisal with regard to issues (1) and (3) is VACATED and the claim of age and reprisal with regard to issues (1) and (3) is REMANDED to the Agency for further processing in accordance with the Order herein.
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
March 11, 2011
__________________
Date
1 With regard to issue (2), Complainant stated she received an investigative interview in July 2010, and was issued a Letter of Warning on August 5, 2010.
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2
01-2011-0431
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013