0320130009
08-07-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0320130009
MSPB No. SF-0353-12-0577-I-1
DECISION
On January 2, 2013, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of the events at issue, Petitioner worked as a Mail Handler at the Agency's Los Angeles Processing and Distribution Center in California.
On June 5, 2012, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the basis of disability when it determined that that there were no available necessary tasks within her medical restrictions and, on April 22, 2009, issued her a notice to take leave until such necessary tasks had been identified.
On December 3, 2012, after a hearing, an MSPB Administrative Judge (MSPB AJ) issued an initial decision finding no disability discrimination.1 Among other things, the MSPB AJ determined that the Agency's actions were based not on Petitioner's disability, but on its assessment under the National Reassessment Process (NRP) that the modified limited duty assignment held by Petitioner was not operationally necessary.
Petitioner did not file a petition for review by the full Board and the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq.
The Commission takes note that on May 30, 2008, an EEOC Administrative Judge granted class certification in McConnell, et al. v. U.S. Postal Service, and defined the class as all permanent rehabilitation employees and limited duty employees employed nationwide by the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act. The EEOC Administrative Judge further defined the McConnell claims into the following broad categories: (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 appealed the certification decision to the Commission. The Commission agreed with the EEOC Administrative Judge's definition of the class and the claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the EEOC Administrative Judge's certification of the class. McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010).
Based on our review of the record, we find that Petitioner's claim of disability-based discrimination in this matter falls squarely within the definition of the McConnell class action and should be subsumed therein.
Because the McConnell class action has been certified and is currently pending before an EEOC Administrative Judge for adjudication on the merits, Petitioner's Rehabilitation Act claim of discrimination is not currently ripe for appellate review by this Commission. Therefore, in the interest of judicial economy and fairness, and to avoid the potential of conflicting decisions on the same issue, the Commission will hold the instant petition for review of the decision of the MSPB in abeyance until such time as a decision has been rendered on the merits of the McConnell class action. The Commission has previously held in abeyance petitions that include a disability claim within the McConnell class action. See Ray v. U.S. Postal Serv., EEOC Petition No. 0320120064 (Apr. 17, 2013); Casis v. U.S. Postal Serv., EEOC Petition No. 0320100010 (Aug. 26, 2010).
CONCLUSION
Accordingly, Petition No. 0320130009 is hereby placed in abeyance and no decision reviewing the MSPB's decision on Petitioner's disability claim will be issued until a decision has been rendered on the merits of the McConnell class action or other intervening events make review appropriate.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
__8/7/14________________
Date
1 The MSPB AJ, however, found that the Agency's discontinuation of Petitioner's modified limited duty assignment under the circumstances of this case constituted an arbitrary and capricious denial of restoration.
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0320130009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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