0120111927
02-10-2012
Charlita B. Hairston, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Charlita B. Hairston,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120111927
Agency No. 1H-326-0010-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 13, 2011, regarding her formal 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
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processor at the Agency’s Processing & Distribution Center in
Panama City, Florida. On December 27, 2010, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on the
basis of race, color, national origin and disability when she was sent to
the Stand-By Room and her duties were “withheld,” or in other words,
she was denied reasonable accommodation in connection with the National
Reassessment Process (NRP).
In its final decision, the Agency stated that Complainant's disability
complaint was being subsumed into a class complaint. 1 Specifically, the
Agency determined that the disability claim raised in Complainant’s
complaint was identical to the claim(s) raised in McConnell
et. al. v. United States Postal Service (Agency No. 4B-140-0062-06).
In 2004, the Agency began the development of the NRP, an effort to
"standardize" the procedure used to assign work to injured-on-duty
employees. In the class complaint, McConnell claimed 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 (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 as follows:
(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 accommodations);
(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 claims, as stated above. Accordingly,
the Commission reversed the Agency's final order rejecting the AJ's
certification of the class. McConnell, et al. v. United States Postal
Service, EEOC Appeal No. 0720080054 (January 14, 2010).
ANALYSIS AND FINDINGS
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."
On appeal, Complainant challenges the Agency’s decision to subsume her
disability claim. She argues that the other “Rehab” status employees
were permitted to continue working, that she could perform 90% of her
duties despite her restrictions, and that the Agency’s actions were
a deliberate and malicious attempt to force her into retirement. Upon
review, however, we find that the Agency correctly subsumed Complainant's
disability claim into the McConnell class complaint. Complainant alleged
that the Agency withdrew her duties claiming that there was no work
available within her limitations, and Complainant was in a limited
duty position due to her medical limitations. While we acknowledge
Complainant’s arguments, we conclude that the Agency’s actions
giving rise to this complaint are directly related to the NRP, and the
adverse treatment Complainant allegedly received is clearly included in
the defined class claims.
This claim of disability discrimination is properly subsumed within the
McConnell class action. Accordingly, the Agency's decision 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
February 10, 2012
__________________
Date
1 The Agency continued processing the race, color and national origin
claims under Agency Complaint No. 1H-326-0014-10. Those claims are not
at issue in this appeal.
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0120111927
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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