0120113074
10-28-2011
Pamela J. Hale, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Pamela J. Hale,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120113074
Agency No. 4H-300-0148-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated May 19, 2011, regarding her formal 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
During the period at issue, Complainant worked as a Clerk at the
Agency’s North Atlanta Carrier Facility in Atlanta, Georgia.
On April 28, 2011, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency subjected her to
discrimination on the bases of sex, disability (lower lumbar and left
leg), and age.
On May 19, 2011, the Agency issued a final decision. Therein, the Agency
determined that Complainant’s formal complaint was comprised of the
following claim:
in August 2009, she was told to report to the stand-by room before,
subsequently, on September 29, 2010, she was told there was no more
work for her within her medical restrictions and was sent home under
the National Reassessment Process (NRP).
The Agency stated that Complainant’s formal complaint, on the basis of
disability, was being subsumed into a class complaint. Specifically,
the Agency determined that the claim raised in Complainant’s formal
complaint was identical to the claim(s) raised in McConnell et,
al. v. United States Postal Service (Agency No. 4B-140-0062-06).
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 claimed 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., which defined the class as all
permanent rehabilitation employees and limited 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 as follows: (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 accommodations); (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 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. United States Postal Service,
EEOC Appeal No. 0720080054 (January 14, 2010).
ANALYSIS AND FINDINGS
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.”
The Agency correctly subsumed Complainant’s claim on the basis
of disability discrimination, into the McConnell class complaint.
Specifically, in her formal complaint, Complainant alleged that she was
told to report to the stand-by room, and subsequently was told there
was no necessary work available for her and sent home under the NRP.
Moreover, the records reflect that Complainant was in a limited duty
position due to her medical limitations.
The agency also indicated that Complainant’s claim on the remaining
bases of sex and age, was being processed separately under Agency
No. 4K-300-0038-11. Thus, the Commission finds that the Agency properly
determined that the claim of discrimination on the bases of sex and age
should be processed separately.
Accordingly, the Agency’s decision to hold Complainant’s claim,
on the basis of disability, in abeyance is AFFIRMED. The claim is now
subsumed within the McConnell, et. al., class action. The remaining claim
of discrimination on the bases of sex and age was properly processed as
a separate complaint (Agency No. 4K-300-0038-11).
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 (S0610)
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 (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
October 28, 2011
__________________
Date
2
01-2011-3074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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