0120082493
09-14-2010
Teresa Dewees, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Teresa Dewees,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120082493
Agency No. 4G770030607
DECISION
On May 5, 2008, Complainant filed an appeal from the Agency's January 1, 2008, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).1
ISSUE PRESENTED
Whether Complainant's allegations of disability discrimination were subsumed into a pending class complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's James Griffith Station2 in Houston, Texas. On January 30, 2002, Complainant was given a limited duty assignment after she suffered an on-the-job-injury. This limited assignment, among other things, required Complainant to "kill mail," answer phones, deliver certified letters, and to confirm mail delivery. Complainant's limited restrictions due to her injury included, no repetitive reaching over 15 minutes, climbing no more than three times an hour, carrying a maximum weight of 10 pounds, and no reaching above her shoulders. On April 19, 2007, management told Complainant to sign a limited duty reassignment for a modified clerk position to work at the General Post Office (GPO) Box Section, effective April 21, 2007. Upon reassignment to the GPO Box Section, Complainant was issued a new schedule and new responsibilities based on her limited duty restrictions.3 Other limited duty employees in the Agency's area three also were made to sign modified limited duty assignment offers that instructed them to report to the GPO Box Section as well.
On August 24, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when:
1. on April 19, 2007, her job offer was canceled; and
2. on April 21, 2007, she was presented a job offer that was outside of her medical restrictions, which she was forced to sign and accept.
At 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In its FAD, the Agency determined that Complainant failed establish a prima facie case of disability discrimination. Specifically the FAD found that Complainant failed to show that she was a person with a disability covered by the Rehabilitation Act. In this regard, the FAD found that Complainant did not establish that she was substantially limited in any major life activity due to her medical impairment. The FAD also found, assuming arguendo that Complainant was a qualified individual with a disability, that the Agency provided her with an effective accommodation because she was provided with a modified limited duty assignment that was within her medical restrictions.
The FAD further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In particular, the FAD indicated that all limited duty employees at the James Griffith station were reassigned to the GPO facility due to a directive from management. In this regard, the FAD noted that limited duty employees who could not perform their assigned duties were reassigned due to budget constraints within area three stations. In this regard, the FAD noted that limited duty employees in area three were reassigned because the Agency felt that they could be more productive within their medical restrictions at the GPO facility.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal.
ANALYSIS AND FINDINGS
As noted above, the FAD found that all limited duty employees from the Agency's area three were reassigned to the GPO pursuant to a directive from management. The record includes a copy of the list of all limited duty employees of area three that were reassigned. During the time in question, the Agency had been undergoing a reassessment of its positions.
The Commission takes administrative notice here, that the claims raised in Complainant's complaint are similar to claims raised in the class complaint, McConnell, et. al. v. U.S. Postal Serv. (Agency No. 4B-140-0062-06). Commission records indicate that in 2004, the Agency began the development of the National Reassessment Process (NRP), an effort to "standardize" the procedures used to assign work to injured-on-duty employees. In the class complaint, the class members claimed that the Agency failed to engage in the interactive process during the NRP process 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 duty 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 into the following broader complaint: (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 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 McConnell claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (January 14, 2010).
After a review of the record in its entirety, we find that there is insufficient evidence within the record to determine whether or not the directive from management to reassign all limited duty employees of area three to the GPO was part of the Agency's NRP. As such, we cannot determine whether or not Complainant's claim of discrimination falls within the McConnell class complaint. Therefore, we find that the record must be supplemented with documents regarding the Agency's reasons for reassigning Complainant as well as other light duty employees of area three. Once the record is further developed, the Agency should determine whether Complainant's claim of disability discrimination falls within the McConnell class complaint. If the matter falls within the class complaint, the instant complaint should be subsumed. If not, then the Agency should re-issue its final decision including its analysis explaining the Agency's finding that the matter does not fall within the McConnell class complaint.
CONCLUSION
Therefore, we find that the Agency's final decision should be VACATED and the matter REMANDED for supplemental investigation in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of this decision becoming final, the Agency is ordered to:
1. Supplement the record in order to determine whether the instant complaint is identical to the claims raised in the McConnell class action. Specifically, the Agency shall include evidence regarding management's directive to reassign all light duty employees of area three to the GPO.
2. If the Agency determines that Complainant's claim is not identical to those raised in the McConnell class complaint, the Agency shall re-issue its final decision. The Agency shall provide a copy of its determination and its final decision to the Commission's Compliance Officer as noted below.
3. If the Agency determines that the complaint raises the same matter as the McConnell class complaint, the Agency is ordered to subsume the instant complaint into the McConnell class complaint. See Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (November 9, 1999). The Agency shall provide Complainant with notification that the Agency has subsumed her complaint within the class complaint. A copy of that notice shall also be provided to the Commission's Compliance Officer as noted below.
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, 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
_9/14/10________________
Date
1 The Agency issued its FAD on January 8, 2008; however, Complainant did not file her appeal until May 5, 2008. The Agency has provided no evidence that indicates when the FAD was received at Complainant's address. Complainant indicates on the Notice of Appeal (EEOC Form 573) that she received the FAD on April 6, 2008. Without evidence to the contrary, the Commission deems the appeal timely.
2 The James Griffith Station was located within the Agency's designated area three.
3 Complainant's work hours of 8:00 AM to 4:30 PM were changed to 2:00 AM to 10:30 AM. Complainant was required to travel over twice as far from 12 miles one way to 34 miles one way to her new assignment. Complainant was at the GPO for nine weeks.
??
??
??
??
2
0120082493
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120082493