Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120121568 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120121568

Agency No. 1C-451-0057-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
January 23, 2012, dismissing her 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 Handler at
the Agency’s Processing & Distribution Center in Cincinnati, Ohio. On December 28, 2011,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination
on the basis of disability when in June 2010, she was assessed under the National Reassessment
Process (NRP), it was determined that no work was available based on her restrictions, and she
was sent home. The Agency initially dismissed the complaint for untimely EEO Counselor
contact. On March 23, 2012, the Agency rescinded the dismissal and accepted the complaint
for investigation. On June 14, 2012, the Agency issued a decision subsuming the complaint
into the McConnell class action explaining that Complainant’s claim was identical to the claims
raised therein.

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.

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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."

Upon review, we find that the Agency correctly subsumed Complainant's individual complaint
into the McConnell class complaint. Specifically, in her formal complaint, Complainant
alleged that the Agency sent her home claiming that there was no work available within her
limitations and gave her job to another employee. Moreover, the records reflect that
Complainant was in a limited duty position due to her medical limitations. 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 June 14, 2012 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.
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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
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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

March 26, 2013
Date