0720080057
01-15-2009
Gary L. Logan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary L. Logan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720080057
Agency No. 4K-220-0119-06
Hearing No. 570-2007-00566X
DECISION
Following its August 22, 2008, final order, the agency filed a timely
appeal which the Equal Employment Opportunity Commission (EEOC or
Commission) accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) decision. The AJ's decision found that
complainant's complaint fell within the scope of the class complaint that
was certified by an EEOC AJ in Sandra McConnell, et al. v. United States
Postal Service, EEOC Case No. 520-2008-00053X (May 30, 2008),1 subsumed
complainant's complaint therein, and dismissed his hearing request.
At the time of his complaint, complainant was a part time flexible
city carrier with the agency's Vienna Main Post Office in Virginia.
In his complaint, as defined by the agency, complainant alleged
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. when from July 7, 2006 to the present he was subjected to
discrimination based on his disability (arthritis with hallux rigidus
- right foot big toe joint) by management disregarding his medical
disabilities and medical documents. Following an investigation,
complainant requested a hearing.
Thereafter, the AJ issued a notice advising the parties that complainant's
complaint appeared to fall within the scope of the McConnell class
action, and if either party contended to the contrary, to show cause in
writing by a specified date. Neither party submitted a timely response.
Thereafter, the AJ issued the decision that the agency rejects in its
final action and appeals.
The McConnell class AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the
agency who have been subjected to the National Reassessment Process (NRP)
from May 5, 2006 to present, allegedly in violation of the Rehabilitation
Act of 1973.
The AJ certification decision recited evidence that the goal of NRP
was to assign work to employees who had an approved compensable injury
as determined by the Department of Labor. According to the decision,
Phase 1 of NRP consisted largely of reviewing the files and medical
records of all these employees; where needed requesting updated medical
documentation from the employee; and verifying that current work actually
being performed matched the current job offer. According to the decision,
Phase 2 consisted largely of canvassing facilities to identify work
necessary for operations and functions, attempting to match the employee
with the necessary work, and if none is found, notifying the employee
that no work was available.
On appeal, the agency indicates that a substantive information mix-up
caused it not to respond to the AJ's opportunity to show cause.
It submits a declaration by its Acting Manager of Health Resources,
who directs the NRP process for the Northern Virginia Performance
Cluster (NOVA). She declares that NOVA is currently in Phase 1 of NRP,
and it began there approximately in January 2007. She writes that
no decisions are made on limited duty and permanent rehabilitation
positions in Phase 1. She declares that complainant is not on her list
of employees to be reassessed, and he will not be subjected to the NRP
because he is currently out of work. She declares that only employees
with a rehabilitation job offer or who are actively on limited duty will
be assessed and subjected to the NRP. The agency argues that the AJ's
decision should be reversed because complainant's complaint is unrelated
to the McConnell class action.
In opposition to the appeal, complainant argues that employees with job
related injuries are supposed to be reviewed under the NRP, and if the
agency did not do so, this was in error. He argues that the agency should
not benefit from its own mistake. Complainant also argues that because
the agency did not respond to the AJ's notice, it should be barred from
arguing that the complaint should not be subsumed into the class action.
He does not deny that he is out of work.
In reply to complainant's opposition, the agency argues that any
procedural problem was overcome when it filed an appeal. It also
reiterates prior argument.
As an initial matter, since the agency timely rejected the AJ's decision
and filed a supporting brief, it is not barred from arguing that the
AJ's decision should be reversed. The complaint, as defined, concerns
the agency disregarding complainant's medical limitations and documents.
This does not implicate Phase 1 of the NRP, and phase 2 has not been
implemented in NOVA. Also, complainant does not contend that he has been
impacted by Phase 2 of NRP. As complainant's individual complaint is
not within the scope of the McConnell class complaint, the AJ's final
order is reversed. The agency shall comply with the order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
Field or District Office a request for a hearing within fifteen (15)
calendar days after this decision becomes final. The hearing request
must include a brief explanation that it is being made pursuant to
this decision, and be accompanied with the complaint and investigative
files and a copy of this decision. The agency shall provide a copy of
the hearing request to the Compliance Officer at the address set forth
below, and a copy to complainant and his representative. Thereafter,
an Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (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 (S0408)
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 (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
January 15, 2009
__________________
Date
1 The agency filed an appeal from the certification decision, which
is pending and was docketed as EEOC Appeal No. 0720080054. The agency
number is 4B-140-0062-06.
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0720080057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720080057