0120093045
11-09-2009
Cynthia A. Ramos, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia A. Ramos,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093045
Agency No. 4F-913-0104-09
DECISION
Complainant filed an appeal with this Commission from the final agency
decision dated June 7, 2009, to hold in abeyance her formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
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. As part of the NRP, on April 9, 2009,
complainant was sent home; was told that management was no longer making
up work for limited duty employees; and was instructed not to return
to work unless the agency called her.
Believing that the agency's actions were discriminatory, complainant
contacted an EEO Counselor. Informal efforts to resolve complainant's
concerns were unsuccessful. On June 16, 2009, complainant filed the
instant formal complaint. Therein, complainant claimed that she was the
victim of unlawful employment discrimination on the bases of national
origin and disability.
In its June 7, 2009 final decision, the agency found that complainant's
individual formal complaint to be identical to the claim raised in
the class complaint, Sandra McConnell v. United States Postal Service
(Case No. 4B-140-0062-06). 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. The agency found that because the McConnell class complaint
is pending before the EEOC, complainant's individual complaint would be
"held in abeyance pending the outcome of the appeal of the certification
decision."
The record indicates that on May 30, 2008, an EEOC Administrative Judge
(AJ) issued a decision recommending certification of the McConnell case,
defined 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 agency chose not to implement the decision and appealed the matter
to the Commission, where it is currently pending (Appeal No. 0720080054).
On appeal, complainant, through her representative, contends that she
agreed with the agency's final decision that her case "on the basis of
ADA (failure to accommodation) should be part of the class action of
Sandra McConnell v. John E. Potter. However, complainant is entitled
to hearing on the purview of national origin."
As an initial matter, we note that the Commission 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
on the basis of disability discrimination in abeyance. Specifically,
in her formal complaint, complainant claimed that on April 9, 2009,
she was sent home and was told that management was no longer making
up work for limited duty employees and not to return to work unless
they call her. Pursuant to the Commission's decision in McConnell,
this claim of disability discrimination is properly subsumed within the
McConnell class action.
We also find, however, that the agency improperly held complainant's
claims of discrimination based on national origin in abeyance because
these claims do not fall within the scope of McConnell.
Accordingly, the agency's decision to hold complainant's claim of
disability discrimination in abeyance is AFFIRMED. The claim is now
subsumed in the McConnell class action. The agency's decision to hold
complainant's claims of national origin is REVERSED, and this claim is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim (of national origin)
in accordance with 29 C.F.R. � 1614.108 et seq. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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, D.C. 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 (M1208)
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), 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
November 9, 2009
__________________
Date
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0120093045
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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