0120093313 & 0120090401
08-02-2011
Marie M. Ryan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Marie M. Ryan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal Nos. 0120093313, 0120090401
Hearing No. 570-2009-0095X
Agency Nos. 1K-221-0012-08, 1K-221-0024-08
DECISION
On November 1, 2008 and August 5, 2009, Complainant filed appeals from the
Agency’s decisions dated October 1, 2008 and July 1, 2009 concerning
her equal employment opportunity (EEO) complaints alleging 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. The Commission accepts the appeals pursuant to 29 C.F.R. §
1614.405(a). We have consolidated the appeals for review pursuant to 29
C.F.R. § 1614.606. For the following reasons, the Commission REVERSES
the Agency’s October 1, 2008 decision and VACATES the Agency’s July 1,
2009 decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency and the AJ erred in
holding claims 1 and 5 in abeyance and subsuming them into the Tighe
class action; (2) whether the AJ erred in subsuming claims 2 and 3 into
the Tighe class action; and (3) whether the Agency erred in issuing a
decision on the merits of claims 2 and 3.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a General Expeditor at the Agency’s Northern Virginia Processing
and Distribution Center in Merrifield, Virginia.
On June 5, 2008, Complainant filed a formal complaint (Agency
No. 1K-221-0012-08) alleging that the Agency discriminated against her
on the bases of race (Caucasian), national origin (Native American),
and disability (deafness) when:
1. on February 7, 2008, she was not provided an interpreter to
discuss her work assignment with management;
2. on February 7, 2008, February 8, 2008, and March 5, 2008,
management did not appropriately investigate her sexual harassment
allegation against a co-worker;
3. on February 15, 2008, she was issued a Letter of Warning;
4. on February 22, 2008, she was not provided with direct access to the
EEO Contact Center; and
5. on February 29, 2008, she was not provided weekly safety and service
talks when an interpreter was available.
On June 26, 2008, the Agency dismissed claim 4 pursuant to 29 C.F.R. §
1614.107(a)(8) for alleging dissatisfaction with the processing of the
instant complaint1 but accepted the remaining claims for investigation.
The Agency investigated claims 1-3 and 5.
On September 24, 2008, after the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). In addition, the Agency informed Complainant that, because
her complaint contained both class and non-class claims, it had separated
the claims into two different case numbers. With respect to claims 2
and 3, the Agency explained that they would be the only claims in Agency
No. 1K-221-0012-08. With respect to claims 1 and 5, the Agency explained
that they would be assigned a new case number (Agency No. 1K-221-0024-08)
and would be held in abeyance.
On October 1, 2008, the Agency issued a final decision (FAD1) holding
in abeyance claims 1 and 5 pending the outcome of the appeal of the
class certification decision in Tighe v. U.S. Postal Service, Agency
No. 1E-801-0070-04. Tighe, a class complaint filed in July 2004,
alleged that the Agency failed to provide sign language interpreters to
deaf employees.
On October 24, 2008, Complainant requested a hearing before an AJ in
Agency No. 1K-221-0012-08. Although the Agency had previously indicated
that Agency No. 1K-221-0012-08 would involve only claims 2 and 3, the
hearing record reflects that claims 1 and 5 were also before the AJ.
On March 23, 2009, Complainant filed a motion to amend and consolidate her
complaint to add additional allegations that she was not provided weekly
safety and service talks in February and March 2009 when an interpreter
was available. On March 27, 2009, the Agency filed a motion to hold in
abeyance Complainant’s complaint and amendments pending a decision on
class certification in Tighe.
On April 9, 2009, the AJ issued an order granting Complainant’s motion
to amend and subsuming the “consolidated complaint” into the Tighe
class action.
On July 1, 2009, the Agency issued a final decision (FAD2) addressing
the merits of claims 2 and 3. In the chronology section, the Agency
stated, among other things, the following: (a) the AJ “ordered that
the certified interpreter issues be subsumed;” (b) the order “did
not account for non-class issues included in the complaint; and (c)
“thus, this decision is being issued on the merits of [claims 2 and
3].” The Agency found that Complainant failed to prove that the Agency
discriminated against her as alleged in claims 2 and 3.
CONTENTIONS ON APPEAL
Neither party submitted a statement or brief on either appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEO MD-110,
Ch. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard
of review “requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment
of the record and its interpretation of the law”).
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 Serv., EEOC Request No. 05920101 (Feb. 13, 1992).
In addition, EEO MD-110, Chapter 8, § III(C) 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.”
We first examine clams 1, 5, and the amended claim. Upon review, we find
that the Agency and the AJ improperly held these claims in abeyance and
subsumed them into the Tighe class action (FAD1 and the AJ’s order).
In these claims, Complainant alleged that she was denied sign language
interpreter services in 2008 and 2009. The duty to provide reasonable
accommodation is ongoing and the Tighe class action was filed in 2004 –
four or five years prior to the instant matter. This determination is
consistent with our previous appellate decisions where we reversed final
agency decisions that held complaints on relatively recent matters in
abeyance due to the Tighe case. See Hobbins-Tabron v. U.S. Postal Serv.,
EEOC Appeal No. 0120101131 (June 17, 2010); Tackett v. U.S. Postal Serv.,
EEOC Appeal No. 0120092364 (June 17, 2010); Plock v. U.S. Postal Serv.,
EEOC Appeal No. 0120100988 (May 18, 2010); Whalen v. U.S. Postal Serv.,
EEOC Appeal No. 0120093715 (Feb. 25, 2010), req. for recons. den.,
EEOC Request No. 0120093086 (May 10, 2010); Soto v. U.S. Postal Serv.,
EEOC Appeal No. 0120093086 (Nov. 10, 2009); Ortiz v. U.S. Postal Serv.,
EEOC Appeal Nos. 0120090061 & 0120092867 (Nov. 6, 2009). Accordingly, we
REVERSE FAD1 and REMAND claims 1, 5, and the amended claims for a hearing.
We next examine claims 2 and 3. Upon review, we find that the AJ
improperly subsumed these claims into the Tighe class action (AJ’s
order). In these claims, Complainant alleged that management did not
appropriately investigate her sexual harassment allegation against a
co-worker and that she was issued a Letter of Warning. These claims are
not similar to the claim raised in the Tighe case. Moreover, we find that
the Agency erred in issuing a decision on the merits of claims 2 and 3
(FAD2). The Agency did not provide a reason for issuing a decision
on the merits, aside from its determination that the AJ subsumed only
the interpreter issues and “did not account” for claims 2 and 3.
However, our review of the AJ’s order reflects that he subsumed
Complainant’s “consolidated complaint” without distinguishing
between the different claims. We find that the Agency’s issuance
of FAD2 deprived Complainant of her right to a hearing. Accordingly,
we VACATE FAD2 and REMAND claims 2 and 3 for a hearing.
CONCLUSION
Based on a thorough review of the record, we REVERSE the Agency’s
October 1, 2008 final decision (FAD1), VACATE the Agency’s July 1, 2009
final decision (FAD2), and REMAND claims 1, 2, 3, 5, and the amended
claims to the Agency for further processing in accordance with this
decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the Washington, DC Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The Agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.
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
_______8/2/11___________
Date
1 Complainant did not specifically contest the Agency’s dismissal of
claim 4 on appeal. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (MD-110), Ch. 9, § IV.A (Nov. 9, 1999) provides
that the Commission has the discretion to only review those issues
specifically raised on appeal. Accordingly, we will not the address
the Agency’s dismissal of claim 4 in the decision herein.
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