0720060005
03-18-2008
Edmond C. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edmond C. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07200600051
Hearing No. 320-A2-8390X
Agency No. 4E800024002
DECISION
Following its September 30, 2005 notice of final action declining to
implement an EEOC Administrative Judge (AJ's) decision to certify the
above-captioned matter as a class complaint, the agency filed the present
appeal requesting that the Commission affirm its final action.
BACKGROUND
Complainant began working for the agency on June 21, 1997, as a temporary
rural relief carrier at the Parker, Colorado Post Office. Complainant's
principal duties in the position required him to fill in when a career
rural carrier was unavailable to work. While in this position he worked
between a few hours a week to 40 hours a week, averaging approximately
fourteen hours per week. On March 6, 1999, complainant injured his right
shoulder and filed for workers' compensation benefits. The Department
of Labor's Office of Workers' Compensation Programs (OWCP) accepted
complainant's claim. On December 15, 1999, complainant was provided
with a temporary limited duty job offer performing custodial duties for
fourteen hours per week. The position was approved by complainant's
doctor as within his medical restrictions and approved by OWCP as
suitable. Complainant rejected the job offer and OWCP terminated his
compensation benefits for refusing a suitable offer.
On January 31, 2000, complainant initiated contact with an EEO Counselor
alleging he was discriminated against based on disability, sex, and
age when the agency offered him the temporary limited duty job offer
for custodial duties for 14 hours per week. On March 21, 2000, the
parties entered a settlement agreement resolving the issues in that
complaint (Agency Case No. 4E-800-0147-00). The settlement agreement
provided that pending the agency's receipt of complainant's physician's
restrictions and satisfactory review by the agency's medical officer,
the agency would allow complainant to work in a modified clerk position
until his restrictions were changed or he reached maximum medical
improvement. Complainant's doctor indicated complainant had reached
maximum medical improvement in a March 20, 2000 letter, and on May 13,
2000, the Postmaster offered complainant a permanent rehabilitation
position as a modified rural carrier associate and informed him that he
was only entitled to work 14 hours per week in this position. On May
19, 2000, complainant accepted the permanent rehabilitation position.
On January 25, 2001, the agency offered to convert complainant to a career
employee as a part-time flexible modified distribution clerk working
14.14 hours per week, a figure arrived at by averaging the number of
hours complainant worked during the year prior to his on the job injury.
Complainant accepted the offer and was made a career employee effective
December 30, 2000.
On May 8, 2000, complainant initiated contact with an EEO Counselor
alleging that he was subjected to discrimination and harassment based
on disability and in retaliation for prior protected activity when the
Postmaster discussed clocking in/out procedures with him; he was given
inaccurate information regarding the number of hours he would work; and no
action was taken to correct a pay error for an overpayment. Thereafter,
complainant filed a complaint (Agency Case No. 4E-800-282-00) dated July
10, 2000, claiming that the Postmaster only allowed him to work 14 hours
per week although the route he was assigned to was allotted more hours.
Following completion of the investigation into his complaint, complainant
requested a hearing on the complaint before an EEOC Administrative Judge
(AJ).
On March 9, 2002, a motion was filed to have complainant added as
a co-class agent in the class complaint of Glover, et al. v. United
States Postal Service, EEOC Hearing No. 320-A2-80111X. The Glover
class complaint alleged that the agency maintained a nationwide policy
of denying promotional opportunities to individuals with disabilities
in permanent rehabilitation duty positions. Glover was certified
by an AJ and the Commission upheld class certification in Glover, et
al. v. United States Postal Service, EEOC Appeal No. 01A04428 (April 23,
2001), request for reconsideration denied, EEOC Request No. 05A10711
(August 16, 2001).2 The motion to add complainant as a co-class agent
in Glover, alleged that complainant was a member of the Glover class and
was denied the opportunity to work more than a set number of hours due
to his status as a permanent rehabilitation employee. The motion also
claimed that such a blanket policy of restricting permanent rehabilitation
employees to a set number of hours violates the law and is a claim common
and typical to the class. The record reveals that on May 22, 2002,
the motion to add complainant as a co-class agent and the issue of duty
hour restrictions was withdrawn. In the motion to withdraw, the request
to add complainant as a co-class agent and the request to add the issue
of the agency's practice of restricting the number of hours permanent
rehabilitation employees worked was withdrawn. The withdrawal motion
asserted that the requests were withdrawn since the Glover complaint
was in settlement discussions. The motion noted that should settlement
discussion in Glover fail, the motion to add complainant as co-class
agent and the issue of the restriction on the number of hours worked by
permanent rehabilitation employees would be renewed.
On May 29, 2002, complainant, as class agent, initiated contact with an
EEO Counselor requesting that his pending individual complaint (Agency
Case No. 4E-800-282-00) be amended to include a new class complaint.
Complainant alleged that the agency discriminated against himself
and disabled individuals as a class since March 2000, by: (1) placing
individuals in permanent rehabilitation positions without engaging in
the interactive process; (2) restricting the hours of individuals placed
in permanent rehabilitation positions without medical justification;
(3) refusing to allow individuals with disabilities placed in permanent
rehabilitation positions to work the number of hours deemed appropriate by
the individual and his/her doctor; and (4) failing to allow individuals
with a disability, who have been placed in permanent rehabilitation
positions, to use assistive devices in the workplace to accommodate
their disabilities. The record shows that a Notice of Right to File a
Class Complaint was issued to complainant on August 16, 2002. Thereafter,
complainant filed a class complaint (4E-800-024-02) with the agency dated
August 19, 2002, on the same issues, alleging that these discriminatory
acts had been continuing for a class of disabled permanent rehabilitation
employees since at least April 2000. On September 19, 2002, the agency
forwarded the class complaint to the EEOC Denver District Office for a
decision by an AJ on certification.
On October 17, 2002, the AJ issued an Order Dismissing Hearing Request
directing complainant's individual complaint (Agency No. 4E-800-282-00) be
placed in abeyance pending resolution of the class certification issue.
On May 5, 2003, complainant withdrew "with prejudice" from the pending
class complaint the following two issues: that the agency failed to
engage in the interactive process and that the agency failed to allow
individuals with a disability to use assistive devices.
The AJ issued a decision on May 12, 2005, granting certification after
finding that the requirements of commonality, typicality, numerosity,
and adequacy of representation were satisfied. Additionally, the AJ
found there was no basis for dismissal of the class complaint under 29
C.F.R. � 1614.107. Accordingly, the AJ certified the following class:
"all permanent rehabilitation employees whose duty hours have been
restricted, from January 1, 2000, to the present, allegedly in violation
of the Rehabilitation Act of 1973." The AJ stated that "[f]or purposes
of this litigation a permanent rehabilitation employee includes any
rehabilitation program employee whose USPS employee records reflect
an employee status code of LDC 69 and/or an employee status code of RC
and/or RD."
Agency's Contentions on Appeal
On September 30, 2005, the agency issued its Notice of Final Action
declining to implement the AJ's decision. On appeal, the agency argues
that the certified class is poorly defined and the class members are
unidentifiable. The agency notes that the AJ provided no definition
for the phrase "duty hour restriction" which it argues makes the class
legally untenable. The agency claims that although the AJ identified two
specific types of restrictions in his definition - restrictions limiting
the number of hours generally worked and duty hour restrictions that
allegedly result in the denial of overtime - the types of restrictions
are open to all sorts of interpretations. Further, the agency claims
it is impossible to identify who had duty hours restricted or who among
permanent rehabilitation employees are disabled. The agency stated
that although it can determine the number of permanent rehabilitation
employees between January 1, 2000, and the present, there is no way to
identify which of those employees had their duty hours restricted.
The agency states that the determination of whether a purported class
member is disabled, regarded as disabled, or has a record of a disability
cannot be made without resort to thousands of mini trials, making class
treatment inappropriate. The agency notes that although a person in
a permanent rehabilitation job by definition has an injury causing a
permanent restriction, this does not mean that every injury necessarily
constitutes an impairment under the Rehabilitation Act or that every
permanent restriction constitutes a substantial limitation on a major
life activity. The agency states that given the varying natures of
permanent rehabilitation employees' injuries, there is only one major
life activity which they all have in common: working. However, the
agency notes that the permanent rehabilitation employees are all working
and argues that therefore, that they cannot be considered substantially
limited in working.
The agency argues that a class complaint is not the superior method of
proceeding in this case because individualized issues would predominate.
The agency states that in the liability phase the parties would not
explore one national policy or practice, but would address the differing
practices of different supervisors in different locations around the
country. The agency states that complainant has failed to identify any
alleged policy or practice with regard to overtime. With regard to the
scheduling of hours, the agency states the alleged nationwide practice
of limiting part-time flexible individuals to their pre-injury scheduled
hours, is not one that would have a common impact on all class members.
The agency also claims in the damages phase, the parties would have to
determine on an individualized basis whether the individual is entitled
to relief and then determine how much he or she could recover.
The agency claims complainant does not have standing to sue since he
is not disabled and did not have his duty hours restricted because of
disability. The agency claims the evidence suggests complainant suffered
a right rotator cuff tear and subsequently underwent rotator cuff surgery,
and that his medical restrictions were: no overhead lifting; no lifting
over 10-15 pounds continuously and a maximum 30 pounds; intermittent
pulling, pushing and lifting; and no dumping garbage cans. The agency
states that these restrictions do not constitute a substantial limitation
on any major life activity. Further, the agency argues that complainant
does not have a cognizable claim because the agency offered him a job
equivalent in pay, benefits, status, and hours to that he worked before
he was injured.
The agency also argues that complainant's EEO Counselor contact is
untimely since no acts of discrimination occurred within the 45 days prior
to his May 29, 2002 EEO Counselor contact on the class issue. Rather, the
agency argues that the alleged discriminatory action occurred in May 2000,
when complainant first accepted a 14-hour a week permanent rehabilitation
position. With regard to the AJ's finding that complainant moved for
class certification at a reasonable point in the process, the agency
claims that complainant did not formally move for class certification
until December 8, 2003, almost 3 1/2 years after filing his individual
complaint and did not file a class complaint until August 22, 2002,
more than two years after filing his individual complaint.
The agency also argues that complainant has no standing to represent
a class since he already filed an individual claim involving the same
issues in Agency Case No. 4E-800-0147-00 which was resolved pursuant to
a settlement agreement on March 21, 2000. The agency argues that even if
complainant has standing and timely contacted an EEO Counselor and filed
a class complaint, he could only represent a class of part-time flexible
employees in permanent rehabilitation positions who were allegedly
disabled and whose hours were limited to the average hours they worked
before they were injured, despite their ability to work more hours.
The agency claims complainant cannot represent full-time employees with
regard to overtime claims since he is not a full-time employee and did
not work in a position that presented overtime.
Further, the agency states that the Commission is without jurisdiction
to hear complainant's claim since it involves a collateral attack on
the Department of Labor's suitability determination. With regard to the
four prerequisites necessary for certification, the agency claimed that
complainant failed to establish commonality, typicality and numerosity.
Finally, the agency argues that the time frame of the class definition
is overly broad. First, the agency argues that in the event the class
is certified, class members should not recover for any alleged acts of
discrimination occurring more than 45 days before his initial May 29,
2002 EEO Counselor contact. Second, the agency claims that complainant's
August 22, 2002 class complaint does not "relate back" to his initial
contact on his individual complaint, but was instead a separate complaint
with separate timeliness requirements. Third, the agency states even if
complainant could reach back to claims that arose within 45 days of his
May 8, 2000 initial EEO Counselor contact on his individual complaint,
that would only extend to March 21, 2000.
Complainant/Class Agent's Contentions on Appeal
In response to the agency's appeal, complainant claims that the agency's
headquarters develops and disseminates all policies and practices
applied to rehabilitation program employees. With regard to the agency's
assertion that the AJ expanded the class complaint to include the overtime
issue, complainant notes that his claim has always included an allegation
that the agency denied permanent rehabilitation employees the opportunity
to work all hours beyond the "average." Complainant notes that when
he moved to become a co-class agent in Glover, the overtime issue was
included in the declarations and letters he submitted. He also states
that in his final interview with the EEO Counselor on July 29, 2002,
when he amended the individual complaint, the overtime issue was raised.
With regard to the prerequisites for class certification, complainant
states that the declarations and letters he has supplied support an
inference that the policies and practices challenged are common to all
rehabilitation program employees. Complainant states that his claim
is typical of the class since he and the entire class of rehabilitation
employees are barred from receiving any form of hours beyond the "average"
assigned when placed in the rehabilitation program. Complainant states
that the "average" becomes an absolute bar to any form of additional
hours whether regular hours, overtime, or holiday time. With respect
to numerosity, complainant claims the AJ properly concluded that the
number of class members in the subject class complaint is the same as
the number of class members in Glover. Complainant also notes that the
agency identified 861 pending EEO complaints that alleged the same or
similar issues as the subject class complaint.
In response to the agency's argument that the AJ improperly expanded
the class period, complainant states that the AJ has wide discretion to
manage and redefine the class. Complainant also states that whether the
AJ uses March 21, 2000, or January 1, 2000, is a ministerial function.
Complainant also states that class members are identifiable under the
definition established by the AJ in his certification decision.
Finally, with regard to timeliness, complainant states that when he
learned that his individual complaint had class implications, he made his
intentions to bring a class complaint clear. He notes that he "moved"
to be a co-class agent in Glover and then "moved" for class certification
in his individual complaint at a reasonable point in the process.
ANALYSIS AND FINDINGS
At the outset we address the agency's contentions that the Commission
has no jurisdiction over the instant complaint because it involves a
collateral attack on the Department of Labor's suitability determination.
Upon review, we note that the class complaint alleges that the agency
restricted work hours of permanent rehabilitation employees based on
their disabilities. We find that the claims raised by the class agent
involve actions taken by the agency and not the Department of Labor, and
thus, do not constitute a collateral attack on the OWCP process. We note
the agency does not claim that the Department of Labor regulations limit
complainant to working no more than 14 hours; nor does the record contain
evidence of such a limitation on the hours complainant can work.
Moreover, we find that complainant did not settle or withdraw either his
individual complaint (Agency Case No. 4E-800-282-00) or the subject class
complaint. Although the record contains a March 21, 2000 settlement
agreement, a review of the agreement reveals that complainant only
settled Agency Case No. 4E-800-147-00 with the agency in that agreement.
Additionally, we find that complainant has standing to sue since he
alleged that he was a qualified individual with a disability who claimed
that his work hours were restricted based on an allegedly discriminatory
policy implemented by the agency.
With regard to the agency's argument that the class complaint should
not be certified because complainant did not establish that he was
an individual with a disability, we find that the record shows that
complainant is a qualified individual with a disability. In order to
bring a class complaint of disability discrimination, complainant must
demonstrate, at a minimum that he has a disability within the meaning of
the Rehabilitation Act. Cyncar v. United States Postal Service, EEOC
Appeal No. 0720030111 (February 1, 2007), request for reconsideration
denied, EEOC Request No. 0520070348 (May 1, 2007). An individual with
a disability is one who has an impairment which substantially limits a
major life activity. An individual is substantially limited in a major
life activity if he is "significantly restricted as to the condition,
manner or duration under which [he] can perform a particular major
life activity as compared . . . to the average person in the general
population." 29 C.F.R. � 1630.2(j)(1)(ii). In determining whether an
individual is substantially limited in a major life activity one must
consider "[t]he nature and severity of the impairment," "[t]he duration
or expected duration of the impairment," and "the permanent or long term
impact, or the expected permanent or long term impact of or resulting
from the impairment." 29 C.F.R. �1630.2(j)(2)(i), (ii), and (iii).
Complainant also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). That section
defines a qualified individual with a disability as meaning, with
respect to employment, a disabled person who, with or without reasonable
accommodation, can perform the essential functions of the position
in question. 29 C.F.R. � 1630.2(m).
In the present case, the record reveals that complainant suffered a
right rotator cuff tear in March 1999, and subsequently underwent
surgery. The agency correctly notes that a December 1, 1999 Work
Capacity Evaluation listed that as a result of complainant's shoulder
his medical restrictions for his right shoulder from Doctor A were:
no overhead reaching; no lifting over 10-15 pounds continuously;
and between 3-4 hours of pulling, pushing, and lifting for a maximum
of 30 pounds. However, the record also reveals that in a March 20,
2000 letter, Doctor A indicated complainant has reached maximum medical
improvement and stated that complainant would need a job that does not
require overhead activities, does not require work away from his body,
and is not continuously repetitive in nature with regard to his right arm.
In a July 19, 2000 letter, Doctor A noted that complainant cannot lift
over 5 to 10 pounds.
Additionally, complainant supplied medical documentation indicating that
he suffers from severe degenerative joint disease in both his knees.
In a May 21, 2001 letter Doctor B indicated as a result of complainant's
knees his medical restrictions were: "lifting carrying" 0-10 pounds less
than one hour per day; and no kneeling, bending, stooping, twisting,
pushing or pulling. Further, Doctor B stated although complainant has
reached maximum medical improvement with regard to his knees, "his lower
extremities are so severely damaged (knees) with arthritis (DJD) that he
is advised to severely limit his walking and the time he is on his feet."
Doctor B indicated the restrictions on his knees are permanent or of an
indefinitely long duration. In a March 7, 2002 letter Doctor B noted
complainant "has severe degenerative arthritis in both of his knees" and
stated that complainant "requires an electric scooter at his job place
to allow him to do his job fully." The record also contains a March 7,
2002 note entitled "Patient Instructions" from Doctor C stating that as
a result of his "severe degenerative arthritis in both of his knees,"
complainant "requires an electric scooter at his job place to allow him to
do his job fully." The "Patient Instructions" also contains a note from
Doctor B noting complainant is "experiencing severe knee pain" from his
DJD and has been advised "to limit his work activities to sitting only"
and asking complainant be allowed to use a scooter at work. Thereafter,
in a March 15, 2002 letter, Doctor B noted that complainant should only
walk from his car to his place of work and the restroom and opined that
complainant can walk about 50 feet at any one time.
The record reveals that at the time complainant filed his July 10, 2000
complaint he suffered from his shoulder impairment for sixteen months.
The record suggests that complainant had at one time been under a
restriction of lifting no more than 15 pounds continuously and a maximum
of 30 pounds intermittently, but his condition apparently worsened since
the record shows that as of July 19, 2000, his normal restrictions allowed
him only to lift up to 10 pounds, with no overhead activity or repetitive
movement with the right arm. We note that the Commission has found
that a 10-pound lifting restriction is sufficient to establish that an
individual is substantially limited in lifting. See Higgins v. United
States Postal Service, EEOC Appeal No. 07A30086 (September 14, 2005)
(finding that complainant was limited in the major life activity of
lifting based on a restriction of 20 pounds). As such, the Commission
concludes that complainant has established that he is an individual with
a disability (shoulder) covered under the Rehabilitation Act. Moreover,
we find that complainant was a qualified person with a disability since
he was performing the essential duties of his position.
With regard to timeliness, we note that the record reveals that
complainant initiated contact with an EEO Counselor on May 8, 2000, when
he claimed in his individual complaint (Agency Case No. 4E-800-0282-00)
that he objected to the agency's position that he was only allowed to
work a maximum of 14 hours per week.3 Complainant thereafter filed a
formal complaint on this issue on July 21, 2000, which was accepted by the
agency and fully investigated. Accordingly, we find complainant timely
contacted an EEO Counselor with regard to his individual complaint.
The agency also argues that complainant did not move for class
certification at a reasonable point in the process since he did not
formally move for class certification until December 8, 2003, almost
three and one-half years after filing his individual complaint and did
not file a class complaint until August 22, 2002, more than two years
after filing his individual complaint. EEOC Regulation 29 C.F.R. �
1614.204(b) provides:
A complainant may move for class certification at any reasonable point in
the process when it becomes apparent that there are class implications to
the claim raised in an individual complaint. If a complainant moves for
class certification after completing the counseling process contained in
� 1614.105, no additional counseling is required. The administrative
judge shall deny class certification when the complainant has unduly
delayed in moving for certification.
EEOC Management Directive provides the following explanation of what
"moves" for class certification means: "[t]he terms 'move' in this
context means that the complainant must make his/her intention to
process the complaint as a class action clear to the investigator if
the complaint is still in the investigation phase of the process, to
the Administrative Judge if the complaint is at the hearing phase of
the process." Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 8-2, at n. 1 (November 9, 1999).
We find that complainant knew there were class allegations to the claim
he raised in Agency Case No. 4E-800-0282-00 on March 9, 2002, when the
motion was filed to add him as a co-class agent to Glover and to have the
issue of duty hour restrictions included in the Glover class complaint.
The agency has not shown that complainant should have or did know of the
class implications of complainant's individual complaint prior to March
9, 2002. We note the motion to add complainant as a co-class agent
was pending before the AJ until May 9, 2002, when it was withdrawn.
Thereafter, complainant promptly initiated EEO Counselor contact on May
29, 2002. In his May 29, 2002 attempt to receive counseling on the class
issues, complainant clearly stated that he had an individual complaint
pending that he wanted to amend to include his class complaint issues.
Thus, we find complainant timely moved for class certification at a
reasonable point in the process when he learned the individual complaint
had class implications. Furthermore, we find that when complainant
attempted to add himself as co-class agent to Glover and when he received
EEO counseling, he made his intentions to seek class certification clear
to the agency.
Further, despite the agency's contentions, we find the class as defined
by the AJ consisting of all permanent rehabilitation employees who had
their duty hours restricted based on their disabilities is not poorly
defined. While the AJ recognized the full definition of duty hours
was not clear at the time, he did note that duty hours consisted of:
(1) restrictions limiting the number of hours generally worked; and
(2) duty hours restrictions that resulting in the denial of overtime.
We find the class is sufficiently defined to enable the parties to
identify potential class members. Moreover, although all class members
do have to be disabled to become members of the class, we note that
despite the agency's contention otherwise, not all class members are
required to be substantially limited in the same major life activity as
argued by the agency on appeal.
Finally, we find the agency is correct in its assertion that the class
members are not entitled to recover for any alleged acts of discrimination
that occurred more than forty-five days before complainant's initial EEO
Counselor contact of May 8, 2000, on his individual complaint. Thus,
we find the time frame for the class complaint to begin March 24, 2000,
rather than January 1, 2000, as identified by the AJ.
Commonality, Typicality, and Numerosity
A class complaint is a written complaint of discrimination filed on
behalf of a class by the agent of the class alleging that: (i) the class
is so numerous that a consolidated complaint of the members of the class
is impractical; (ii) there are questions of fact common to the class;
(iii) the claims of the agent of the class are typical of the claims
of the class; and (iv) the agent of the class, or, if represented, the
representative, will fairly and adequately protect the interests of the
class. 29 C.F.R. � 1614.204(a)(2). The burden is on the party seeking
to certify a class to meet all four requirements. Mastren v. United
States Postal Service, EEOC Request No. 05930253 (October 27, 1993).
Failure of a party to meet any one of the four requirements is sufficient
reason for dismissal. See 29 C.F.R. � 1614.204(d)(2).
In addressing whether a class complaint warrants certification, it is
important to first resolve the requirements of commonality and typicality
in order to "determine the appropriate parameters and the size of the
membership of the resulting class." Fusilier v. Dep't of the Treasury,
EEOC Appeal No. 01A14312 (February 22, 2002) (citing Moten v. Federal
Energy Regulatory Commission, EEOC Request No. 05960233 (April 8, 1997)).
Commonality requires that complainant identify questions of fact common
to the class. Mastren, EEOC Request No. 0593025. "Factors to consider
in determining commonality include whether the practice at issue affects
the whole class or only a few employees, the degree of local autonomy
or centralized administration involved, and the uniformity of the
membership of the class, in terms of the likelihood that the members'
treatment will involve common questions of fact." Id. "Evidence used by
courts to determine whether individual and class claims meet commonality
include statistical evidence, anecdotal testimony by other employees
showing that there is a class of persons who were discriminated against
in the same manner as the individuals and evidence of specific adverse
actions alleged." Hines, et al. v. Dep't of the Air Force, EEOC Request
No. 05940917 (January 29, 1996). As a practical matter, "commonality
and typicality tend to merge." Hudson v. Dep't of Veterans Affairs, EEOC
Appeal No. 01A12170 (March 27, 2003). Typicality exists where the class
agent demonstrates some "nexus" with the claims of the class, such as
similarity in the conditions of employment and similarity in the alleged
discrimination affecting the agent and the class. Thompson v. U.S. Postal
Service, EEOC Appeal No. 01A03195 (March 22, 2001).
We find that complainant has met the requirements of commonality and
typicality. Complainant alleged that the agency has a nationwide
practice of restricting the duty hours of permanent rehabilitation
employees who are disabled. In support of his allegation, complainant
submitted declarations from employees from geographically dispersed agency
facilities who each asserted that they were permanent rehabilitation
employees and had their work hours restricted. Thus, we find that the
evidence supplied is sufficient to support an inference that there is
a class of persons who were harmed by the identified agency policy or
practice of restricting work hours and that the class will share common
questions of fact.
With regard to typicality, we find complainant has shown sufficient nexus
between his claim and the claims of other class members. Specifically,
complainant alleged that as a permanent rehabilitation employee with a
disability, he was subjected to the agency's practice of restricting his
general working hours. We find complainant's claim to be typical to the
claim of the class since other purported class members, other permanent
rehabilitation employees with disabilities, would have the same interest
and would suffer the same injury under complainant's theory.
Additionally, EEOC regulation 29 C.F.R. � 1614.204(a)(2)(i) requires that
a class be so numerous that joinder of the complaint is impractical.
While there is no minimum number required to form a class, and an
exact number need not be established prior to certification, courts
have traditionally been reluctant to certify classes with less than
thirty members. Mastren, EEOC Request No. 05930253.
When determining whether numerosity exists, other considerations include
geographic dispersion, ease with which the class may be identified,
the nature of the action, and the size of each claim alleged. See Wood
v. Department of Energy, EEOC Request No. 05950985 (October 5, 1998).
Complainant claims that the class complaint could reach as high as 26,000
employees, which is the number of permanent rehabilitation employees
identified in the Glover class complaint. The record discloses that
in a January 28, 2004 letter prepared in response to a request to
identify pending EEO complaints that raise the same or substantially
similar issues to those raised in the present class complaint, the agency
identified 861 individuals who have pending disability complaints alleging
discrimination in relation to their duty hours. While we recognize that
not all of the 861 pending EEO complaints necessarily involve claims
by permanent rehabilitation employees, we also note that the record
contains an August 26, 2004 letter from the agency discussing that in
December 2003, following its National Reassessment Initiative, over
11,000 permanent rehabilitation employees were not allowed to return
to full duty. Even if we assume that each of the 11,000 may not be a
class member, based on the record we find it is reasonable to assume
that a significant number may be, and that number would be sufficient
to establish the impracticality of joinder.
We note that the agency does not challenge the AJ's finding that
complainant satisfied the adequacy of representation prerequisite; and,
therefore, we do not address that requirement in this decision.
Finally, we note that even after the class is certified, the
Administrative Judge remains free to modify the certification order
or dismiss the class complaint in light of subsequent developments.
See General Telephone Co. v. Falcon, 457 U.S. 147, 160 (1982). The AJ
has the authority, in response to a party's motion or on his/her own
motion, to redefine a class, subdivide it, or dismiss it if the AJ
determines that there is no longer a basis for the complaint to proceed
as a class complaint. Hines v. Department of the Air Force, EEOC Request
No. 05940917 (January 29, 1996).
Accordingly, we REVERSE the agency's final action and REMAND this matter
for further processing in accordance with the ORDER below.
ORDER
It is the decision of the Commission to certify the class comprised of
individuals with disabilities in permanent rehabilitation positions who
had their duty hours restricted beginning on March 24, 2000. The agency
is ORDERED to process the remanded class complaint in accordance with 29
C.F.R. �1614.204(e) et seq. Within 15 calendar days of the date this
decision becomes final, the agency shall notify all class members of
the acceptance of the class complaint in accordance with � 1614.204(e).
Within 30 calendar days of the date this decision becomes final, the
agency shall provide the appropriate EEOC District Office with a copy of
the notice sent to the class members, and shall request the appointment
of an AJ, who shall undertake the continued processing of the complaint
pursuant to � 1614.204(f) et seq. The agency shall provide a copy
of the notice of certification and request for appointment of an EEOC
Administrative Judge to the Compliance Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
March 18, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that in the Glover class complaint, a final agreement was
signed by the parties on December 3, 2003, and approved by an AJ on June
10, 2004. Subsequent appeals challenging the fairness of the settlement
agreement filed with the Office of Federal Operations were denied and
the Commission affirmed the AJ's approval of the agreement. See, e.g.,
May and Perry v. United States Postal Service, EEOC Appeal Nos. 01A44445
and 01A44564 (May 4, 2005).
3 Although the agency did not formally issue the permanent rehabilitation
offer to complainant until May 13, 2000, we note that in a March 20, 2000
letter to the agency, complainant's physician stated that complainant
reached maximum medical improvement, and the record reveals the agency
limited complainant to working 14 hours per week after receipt of
this letter.
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0720060005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507