Billy G. Lillie, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionJun 30, 2010
0120101451 (E.E.O.C. Jun. 30, 2010)

0120101451

06-30-2010

Billy G. Lillie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.


Billy G. Lillie,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Western Area),

Agency.

Appeal No. 0120101451

Agency No. 1E809000210

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated January 27, 2010, concerning his 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

In a complaint dated January 20, 2010, Complainant alleged that the

Agency subjected him to discrimination on the basis of disability when he

was given a new limited duty assignment and his hours were drastically

reduced. In its final decision, the Agency stated that Complainant's

formal complaint was being held in abeyance pending the outcome of an

appeal of a certification decision in a class complaint. Specifically,

the Agency determined that the claims raised in Complainant's complaint

were identical to the claim(s) raised in McConnell, et. al. v. United

States Postal Service (Agency No. 4B-140-0062-06). The instant appeal

followed. Complainant filed statement on appeal explaining what he was

challenging..

ANALYSIS AND FINDINGS

In 2004, the Agency began the development of the National Reassessment

Process (NRP), an effort to "standardize" the procedure used to assign

work to injured-on-duty employees. In McConnell, et. al. v. United

States Postal Service (Agency No. 4B-140-0062-06), the class claimed that

the Agency failed to engage in the interactive process during the NRP

in violation of the Rehabilitation Act. Further, the Agency is alleged

to have 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,1 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. USPS, EEOC Appeal

No. 0720080054 (January 14, 2010).

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. United

States Postal Service, EEOC Request No. 05920101 (February 13, 1992).

In addition, 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."

Upon review, we find that the agency correctly held complainant's

claim of disability discrimination in abeyance. Specifically, in his

formal complaint, complainant alleged that the agency gave him a new

limited duty assignment and drastically reduced his hours. Moreover,

the records reflect that complainant was in limited duty position due

to his limitations associated with a work-related medical condition.

This claim of disability discrimination is properly subsumed within the

McConnell class action.

The Agency's decision to hold the complaint in abeyance is AFFIRMED.

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

June 30, 2010

__________________

Date

1 EEOC Hearing No. 520-2008-00053X.

??

??

??

??

2

0120101451

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120101451