0120062866
05-29-2008
Loretta Castillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Loretta Castillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200628661
Agency No. 4E-800-0503-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 21, 2006, concerning her 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. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of disability when: (1)
on March 7, 2003, complainant was reassigned to the Capital Hill Annex
changing her duty hours and non-scheduled days; and (2) on unspecified
dates complainant was denied details.
In an April 23, 2004 decision, the agency issued a final decision
informing complainant that her individual complaint would be held in
abeyance until the Commission issued a decision regarding certification
of the Walker class complaint.
Thereafter, complainant filed an appeal with the Commission from the
agency's decision to hold her complaint in abeyance pending a decision
regarding certification of the Walker class complaint. In EEOC Appeal
No. 01A44145 (October 12, 2005), the Commission issued a decision finding
that complainant's complaint did not fit the definition of the Walker
class complaint. Thereafter, the agency resumed processing complainant's
complaint. Complainant requested a hearing on the matter and issue (1)
was the subject of a decision by an EEOC AJ.
On February 21, 2006, the agency issued another final decision stating
that issue (2) of complainant's complaint was being held in abeyance
since it fell within the definition of a second class complaint.
Specifically, the agency determined that the claim raised in complainant's
complaint was identical to the claim(s) raised in Glover, Albrecht et
al. v. United States Postal Service, Agency No. CC-801-0015-99, EEOC
Case No. 320-A2-8011X.
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 in 1992, Chandler Glover, the class agent in
Glover, et al. v. United States Postal Service, Agency No. CC-801-0015-99,
EEOC No. 320-A2-8011X, filed an individual complaint alleging that
he was discriminated against on the basis of disability. Thereafter,
complainant indicated a desire to pursue the matter as a class complaint
and on February 20, 1999, he filed a class complaint of discrimination
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 March 30, 2003, an EEOC AJ certified the following class: those
persons employed by the agency between January 1, 1992, and the
present while in permanent rehabilitation positions who were allegedly
denied promotional and/or advancement opportunities allegedly due to
discrimination on the basis of disability. The AJ noted the phrase
"advancement opportunities" was defined to mean vertical movement from
a lower level grade and/or pay within the Postal Service system, to a
position at a higher level grade and/or pay. The phrase "promotional
opportunities" was defined to include training, assignments, details,
and awards that would have enhanced a class member's qualifications for
promotion to such position, whether the promotion would have been a career
ladder promotion or a competitive promotion. The phrase "permanent
rehabilitation employee" was defined to mean any current or former
Postal Service employee injured in the performance of his/her duties,
who as of January 1992, and forward: (1) had a claim accepted by the
U.S. Department of Labor, Office of Workers' Compensation Programs for
wage loss and permanent partial disability; and (2) was provided with
an indefinite modified job assignment or position, upon return to work.
The agency appealed the AJ's decision certifying the class to the
Commission and the Commission upheld class certification in Glover, et
al. v. United States Postal Service, EEOC Appeal No. 01A04428 (April 23,
2001), req. for recons. denied, EEOC Request No. 05A10711 (August 16,
2001).2
ANALYSIS AND FINDINGS
Upon review, we find that the agency properly determined that issue
(2) should be held in abeyance because it is identical to the claim in
the Glover class complaint. Specifically, the record reveals that in
July 1999, complainant was given a permanent rehabilitation assignment
in Operation 958/LDC 69. Further, in her complaint, complainant claims
that the Postmaster "never again allow[ed] rehab employees to detail into
higher level positions in this office" and she alleges the Postmaster
denied her several opportunities based on her disability. Moreover, we
note complainant does not argue that she is not a member of the Glover
class complaint.
Accordingly, the agency's decision to hold issue (2) in abeyance is
AFFIRMED. We find the agency's decision to continue processing the
remainder of complainant's complaint was proper.
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 (S0408)
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.
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 29, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 We note that in the Glover class complaint, a final agreement was
signed by the parties on December 3, 2003, and approved by an AJ on June
10, 2004. Subsequent appeals challenging the fairness of the settlement
agreement were filed with the Commission were denied and the Commission
affirmed the AJ's approval of the agreement. See, e.g., May and Perry
v. United States Postal Service, EEOC Appeal Nos. 01A44445 and 01A44564
(May 4, 2005).
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0120062866
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036