01a43605
05-25-2005
Stephanie H. Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephanie H. Lee v. United States Postal Service
01A43605
05-25-05
.
Stephanie H. Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43605
Agency No. 1C-271-0044-03
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission REVERSES the agency's
final order.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency's decision to
place complainant's complaint in abeyance pending the disposition of
the Walker v. United States Postal Service class action was correct.
BACKGROUND
Complainant, a Manual Distribution Clerk, contends that she was
discriminated against based on her disability (cervical herniation) when
on May 21, 2003, she was reassigned to the Greensboro P& DC. A final
agency decision was issued informing complainant that her individual EEO
complaint, and all processing thereof, would be held in abeyance until
the EEOC issued a decision regarding the certification of the Walker
class action complaint.
On August 19, 2002, Edmond C. Walker, the class agent in Walker
v. United States Postal Service, EEOC No. 320-A2-8390X (the Walker
class complaint), filed a complaint alleging that, since April 2000,
the agency discriminated against individuals with disabilities by:
1. Placing disabled individuals in permanent rehabilitation positions
without engaging in the interactive process as required by law;
2. Restricting disabled individuals who are placed in permanent
rehabilitation [sic] to limited work hours without any medical
justification and without consulting the individual with a disability;
3. Fail[ing] to allow individuals with a disability, who have been
placed in permanent rehabilitation positions, to work the number of
hours determined appropriate by the individual and his/her physician
and which are available; and
4.
Fail[ing] to allow individuals with a disability, who have been placed
in permanent rehabilitation positions, to use assistive devices in the
workplace to accommodate their disabilities, including but not limited
to, electric scooters, notwithstanding that said assistive devices pose
no threat to safety or inconvenient [sic] in the workplace.<1>
ANALYSIS AND FINDINGS
For the reasons that follow, we find that complainant's complaint
does not fall within the parameters of the Walker class action.
Complainant alleges that she was provided a Limited Duty Assignment
which reassigned her to the Clerk Craft at the Greensboro Processing
and Distribution Center and changed her work hours from 7:00 a.m. -
4:00 p.m. to 4:00 p.m. - 12:30 a.m. Complainant contends that there was
no attempt to accommodate her within her own installation or with her
original duty hours.<2>
On appeal, the agency takes no position on the merits of complainant's
appeal other than to reiterate that all actions taken by the agency
were in full compliance with the AJ's order in the Walker class action.
The agency further maintains that, �to the extent appellant challenges
the aforementioned process or the contents of the FAD, the agency offers
no response.�
In light of the agency's current posture, we find nothing in the
record to support the contention that complainant's complaint should
be a part of the class action. Therefore, after a careful review of
the record, including the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
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 (K0501)
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 (M0701)
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 (S0900)
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 (Z1199)
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
____05-25-05______________
Date
1 According to the agency, Mr. Walker
voluntarily withdrew allegations (1) and (4).
2 The facts do not show that complainant was in a permanent rehabilitation
position.