0120123261
08-13-2013
Jennifer J. Warner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Jennifer J. Warner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120123261
Agency No. 4G-752-0107-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 18, 2012, concerning 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
On March 20, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when, since November 2011, Complainant was not permitted to work her existing modified job offer and on January 17, 2012, she received a letter dated January 5, 2012, "Notice of No Work Available."
On July 18, 2012, the Agency issued a decision stating that Complainant's formal complaint was being held in abeyance pending a class complaint. Specifically, the agency determined that the claim raised in Complainant's formal complaint was identical to the claim raised in Glee Williams v. U.S. Postal Serv., Agency Number 10-721-0008-12. The Agency indicated that the Williams class action is currently pending before an EEOC Administrative Judge. The Agency noted that the class complaint has not been clearly defined but that it arguably defined the class as applying "to allegations from employees whose limited duty and rehabilitation assignments have been changed by management to consist of fewer work hours per day than they had previously been afforded." As such, the Agency determined that the complaint at hand should be held in abeyance pending the Williams class complaint.
This appeal followed. Complainant argued that her complaint does not fall within the definition of the class and should not be held in abeyance. The Agency failed to respond to the appeal.
ANALYSIS AND FINDINGS
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. U.S. Postal Serv., EEOC Request No. 05920101 (Feb. 13, 1992). In addition, Equal Employment Opportunity Management Directive-110 (MD-110), Chapter 8, � III (C) (Nov. 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. If the class complaint is dismissed at the certification level, the individual complaint may still proceed...."
In the instant case, however, while the Agency asserts that Complainant's individual complaint should be held in abeyance because it is identical to the claim raised in the Williams class complaint, it has failed to provide a copy of the class complaint making it difficult for the Commission to determine whether or not the instant individual complaint is indeed identical to the class complaint. In this regard, the Agency has failed to substantiate the basis for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Therefore, the Commission cannot find that agency properly determined to hold the instant individual complaint in abeyance as involving an issue identical to the Williams class claim.
CONCLUSION
Accordingly, the Agency's decision to hold the complaint in abeyance is VACATED, and the complaint is REMANDED to the Agency for further processing in accordance with the following ORDER.
ORDER
The Agency is ORDERED to resume processing of Complainant's individual complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of Complainant's complaint.
A copy of the agency letter of acknowledgement must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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, DC 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 (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 (R0610)
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 (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
August 13, 2013
__________________
Date
2
0120123261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123261