0120093648
09-02-2011
Charles R. Turner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Charles R. Turner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120093648
Hearing No. 480-2009-00062X
Agency No. 4E-890-0098-07
DECISION
On August 31, 2009, Complainant filed an appeal from the Agency’s July
31, 2009, final order concerning his 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 accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
VACATES the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether Complainant’s allegation of disability
discrimination should be remanded to determine if it should be subsumed
into a pending class complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Carrier (limited duty status) at the Agency’s Meadow Mesa Post
Office in North Las Vegas, Nevada.
In August 2006, management eliminated the Out of District (OD) mail
function from the Meadow Mesa Post Office and several other post offices
in the area. This operational change primarily impacted limited duty
employees. Thereafter, management reviewed the job offers of those
limited duty employees. After reviewing his job offer and evaluating what
duties he could perform, management offered Complainant a reassignment to
a Modified Clerk position at the James Brown Facility effective April 14,
2007. Complainant began the Modified Clerk position on April 16, 2007.
On August 2, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability (back,
knees, and legs).1 The Agency framed Complainant’s claim as follows:
on or around May 29, 2007, he became aware that he had been permanently
reassigned to a different craft and duty station effective April 14, 2007.
At the conclusion of the investigation, Complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ1). Over Complainant’s objections, AJ1 granted
the Agency’s March 4, 2009, motion for a decision without a hearing
and issued a decision without a hearing on July 23, 2009. Although AJ1
found that the Agency had treated Complainant as a qualified individual
with a disability, AJ1 concluded that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reason for his reassignment:
the elimination of workload. The Agency subsequently issued a final
order adopting AJ1’s finding that Complainant failed to prove that he
was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, argued that his workload was
not eliminated. Instead, Complainant asserted, the Agency gave his duties
to others and permanently reassigned him and other disabled employees.
In response, the Agency argued that Complainant’s appeal was
untimely.2 In addition, the Agency asserted that Complainant’s claim
of discriminatory reassignment was untimely because he was notified
about the reassignment on February 26, 2007 but did not contact an EEO
Counselor until June 21, 2007.3 Further, the Agency contended that
Complainant failed to show that its legitimate, nondiscriminatory reason
was a pretext for unlawful discrimination.
ANALYSIS AND FINDINGS
Here, management conducted an operational review of its limited duty
employees’ job duties. There is no dispute that Agency management
reassigned certain limited duty employees from its Meadow Mesa Post
Office. However, the record is unclear as to how the Agency determined
which employees would be reassigned. This is a significant consideration
because during the time in question, the Agency was undergoing an
assessment of positions which is the subject of a class action.
The Commission takes administrative notice here that the claim raised in
Complainant’s complaint may be identical to one or more of the claims
raised in the class complaint, McConnell, et al. v. U.S. Postal Service
(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 procedure used to assign work to
injured-on-duty employees. In the class complaint, McConnell claims 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 (AJ2) granted class
certification in McConnell, 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. AJ2 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, failed
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 (Jan. 14, 2010).
After a review of the record in its entirety, we find that there
is insufficient evidence within the record to determine whether the
Agency’s operational review at its Meadow Mesa Post Office was part of
the Agency’s NRP. Specifically, we observe that the record contains
the following documentation:
(a) Two emails with the subject line “FW: Injured Workers Project”
sent by the Manager, Customer Services (MCS):
(i) An October 30, 2006 email in which MCS wrote, “When I stated,
… ‘we will be reviewing the job offer for NAPS for variance
purposes,’ I am referring to the review of the Permanent Modified
Job Assignments for the legacy employees to ensure both productive and
nonproductive hours are recorded appropriately for the National Assessment
Process.” Complainant’s Opposition Motion, Attachment 13, at 5.
(ii) A November 13, 2006 email in which MCS wrote, “The attached are
the ones that had an operational change due to the elimination of OD.
The ones in ‘green’ are the ORNA National Assessment Process.”
Report of Investigation (ROI), Ex. 6, at 6.
(b) Reassignment documentation for a comparator containing “NRP P1_p24
limiteddutymedupdate.doc” at the bottom of the form. ROI, Ex. 8, at 24.
As such, we cannot determine whether Complainant’s claim of disability
discrimination falls within the McConnell class action. Therefore,
we find that the record must be supplemented with documents regarding
the Agency’s reasons for reassigning Complainant and other employees.
Once the record is further developed, Agency should determine whether
Complainant’s claim of disability discrimination falls within the
McConnell class action. If the matter falls within the class action,
the instant complaint should be subsumed. If not, then the Agency should
re-issue its final order, including its analysis explaining the Agency’s
finding that the matter does not fall within the McConnell class action.
CONCLUSION
Accordingly, we VACATE the Agency’s final order and REMAND the matter
for supplemental investigation in accordance with the ORDER below.
ORDER
The Agency is ORDERED to complete the following actions within sixty
(60) calendar days from the date on which this decision becomes final:
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 the
operational review that occurred at its Meadow Mesa Post Office that
resulted in Complainant’s reassignment to the James Brown Facility.
The results of this supplemental investigation shall be provided to the
Commission’s Compliance Officer.
2. If the Agency determines that the instant complaint is not identical
to those raised in the McConnell class, the Agency shall re-issue its
final order. The Agency shall provide a copy of its determination and
its final order to the Commission’s Compliance Officer as noted below.
3. If the Agency determines that the instant complaint raises the same
matter as the McConnell class action, the Agency is ordered to subsume the
instant complaint into the McConnell class action. See Equal Employment
Management Director for 29 C.F.R. Part 1614, at Ch. 8, § III(C) (Nov. 9,
1999). The Agency shall provide Complainant with notification that the
Agency is processing his complaint as subsumed within the class action.
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, 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
____9/2/11______________
Date
1 Complainant had also alleged discrimination on the basis of age,
but later withdrew it in his opposition to the Agency’s motion for a
decision without a hearing (opposition motion).
2 Although the Agency asserted that Complainant filed his appeal on
September 17, 2009, the record reflects that Complainant filed his appeal
on August 31, 2009 and his brief in support of the appeal on September
17, 2009. Accordingly, we find that Complainant’s appeal is timely.
3 Where, as here, there is an issue of timeliness, “[a]n agency
always bears the burden of obtaining sufficient information to support a
reasoned determination as to timeliness.” Guy, v. Dep’t of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of
Def., EEOC Request No. 05920506 (Aug. 25, 1992)). Complainant appears
to argue that the discrimination related not only to the reassignment
itself (the change in title and work duties), but also to other terms and
conditions of employment which he did not find out about until May 29,
2007, when he received a PS Form 50, Notification of Personnel Action
that was processed on May 17, 2007. In his EEO complaint, Complainant
wrote that, because the PS Form 50 changed his craft from Carrier to Mail
Processing Clerk, it effectively: (1) stopped promotional capability; (2)
froze pay at current schedule; (3) demoted him from his previous position;
(4) resulted in a complete loss of seniority; and (5) resulted in a loss
of all future National Letter Carriers Association negotiated pay and
benefit increases. Based on the above, we find that Complainant’s
June 21, 2007 EEO Counselor contact was timely because he did not have
reasonable suspicion of discrimination until his May 29, 2007 receipt
of the PS Form 50. See 29 C.F.R. § 1614.105(a)(1).
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0120093648
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093648