0120061148
05-16-2008
Larry Nobles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry Nobles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200611481
Agency No. 1G756003605
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated January 17, 2006, concerning his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. �791 et seq. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race, color, and disability
when in August 2005, complainant was denied the opportunity to work
overtime in the express mail section.
In its final action, the agency stated that complainant's complaint
was being held in abeyance pending the possible certification of a
class complaint. Specifically, the agency determined that the claim
raised in complainant's complaint was identical to the claim(s) raised
in Walker v. United States Postal Service, Agency No. CC-800-0359-03,
EEOC Appeal No. 0720060005.
As an initial matter, we note that the Commission 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. If the class complaint is dismissed at the certification
level, the individual complaint may still proceed . . ."
The record reveals that on May 29, 2002, Edmond C. Walker, the class
agent in Walker v. United States Postal Service, EEOC No. 320-A2-8390X,
filed a class complaint alleging that he and others within the agency were
discriminated against on the basis of disability. The class complaint
was forwarded to the EEOC Denver District Office for a decision on
certification. On December 12, 2003, the AJ assigned to the case issued
an Order directing the agency to "identify all those pending complaints
that raise the same issue as the Walker class complaint" and to "issue
a decision notifying [c]omplainants that their complaints will be held
in abeyance while awaiting the decision to accept or reject the class
complaint."
On August 29, 2005, the EEOC AJ issued a decision certifying the
following class: all permanent rehabilitation employees whose duty hours
have been restricted, from January 1, 2000, to the present, allegedly in
violation of the Rehabilitation Act of 1973. The AJ noted that permanent
rehabilitation employee includes any rehabilitation program employee
whose agency employment records reflect an employee status code of LDC
69 and/or an employee status code of RC and/or RD.2
The agency appealed the AJ's decision to grant class certification
to the Office of Federal Operations. In EEOC Appeal No. 0720060005
(March 18, 2008), the Commission issued a decision upholding the AJ's
class certification decision.
ANALYSIS AND FINDINGS
Upon review, we find that the agency properly determined that
complainant's allegation of disability discrimination should be held in
abeyance because it is identical to the claim in the Walker class action.
Specifically, the record contains a Form 50 History showing that in
2004, complainant was classified as an RD employee, which is included
in the category of permanent rehabilitation employees as defined in
the Walker class definition. The record also contains an Offer of
Modified Assignment (Limited Duty) showing that in 2004, complainant
was given a limited duty "rehab" assignment. Further, in his formal
complaint, complainant is claiming that he was denied the opportunity
to work overtime in August 2005, solely due to his limited duty status.
However, we find that the agency improperly held complainant's claim
of discrimination based on race and color in abeyance because these
allegations does not fall within the parameters of Walker.
Accordingly, the agency's decision to hold complainant's claim
of disability discrimination in abeyance is AFFIRMED.3 The agency's
decision to hold complainant's claim of discrimination based on race and
color in abeyance is REVERSED and the claims based on race and color
discrimination are REMANDED to the agency for further processing in
accordance with this decision and the ORDER herein.
ORDER (E0408)
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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (T0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 16, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The AJ additionally noted that due to the lack of discovery on the
merits of the case, the full scope of the term "duty hour restrictions" is
not known. However, the AJ noted it is clear that two specific types of
restrictions have been identified by the class: (1) restrictions limiting
the number of hours generally worked; and (2) duty hour restrictions
which allegedly result in the denial of overtime.
3 If, however, the class complaint becomes decertified at some point,
then the agency shall resume processing the individual disability claim.
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0120061148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036