0120121668
11-14-2012
Lloyce C. Bryant, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Lloyce C. Bryant,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121668
Agency No. 4F-900-0231-11
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated December 14, 2011, concerning his 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. For the following reasons, the Agency's final decision is AFFIRMED.
BACKGROUND
Complainant filed a formal complaint dated November 7, 2011, alleging that the Agency subjected him to discrimination on the basis of disability (knee) when:
1. On August 9, 2011, Complainant was placed in a Stand-By status;
2. On August 12, 2001, management offered Complainant an assignment outside of his medical restrictions.
3. On September 14, 2011, Complainant was told there was no work available and was subsequently sent home;
4. Since September 14, 2011, Complainant has not received any pay; and
5. On October 13, 2011, management informed Complainant that he would be removed from his bid assignment.
On December 1, 2011, the Agency accepted issues (3) an (4) for processing as a mixed case. The Agency determined issues (1), (2), and (5) would be processed as a non-mixed complaint under Agency No. 4F-900-0275-11.
Subsequently, on December 14, 2011, the Agency rescinded its acceptance of Complainant's claim that he was subjected to discrimination based on his disability when: On September 14, 2011, Complainant was told there was no work available and sent home and since September 14, 2011, Complainant has not received any pay (issues (3) and (4) above). Specifically, the Agency determined that Complainant's claim of disability discrimination falls within the pending class action, Deborah Cooper, Wanda West, et al. v. U.S. Postal Service, EEOC Case Nos. 480-2008-00175; 480-2009-00211X.1 Thus, the Agency determined Complainant's claim of disability discrimination would be subsumed in the Cooper, West class complaint.
On May 12, 2009, an EEOC Administrative Judge (AJ) granted class certification in Deborah Cooper, Wanda West, et al. v. U.S. Postal Service, which defined the class as all limited and light duty employees (excluding permanent rehabilitation employees) in the Los Angeles District (or "Performance Cluster") whose work hours were limited, including being sent home and told not to return since June 12, 2007, allegedly in violation of the Rehabilitation Act of 1973. The Agency declined to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the Cooper, West claims, as stated above. Accordingly, the Commission reversed the Agency's final action rejecting the AJ's certification of the class. Deborah Cooper, Wanda West, et al. v. U.S. Postal Service, EEOC Appeal No. 0720090043 (May 9, 2012).
ANALYSIS AND FINDINGS
The Commission notes that it 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 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 of disability discrimination (issues (3) and (4)) in abeyance. Specifically, the record reflects that Complainant was in a limited duty position due to his medical limitations. In his complaint, Complainant is claiming that he was sent home because there was no work within his restrictions in violation of the Rehabilitation Act. We find Complainant's claim of disability discrimination is properly subsumed within the Cooper, West class action.
CONCLUSION
Accordingly, the Agency's final 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.
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 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 14, 2012
__________________
Date
1 This class complaint was previously known as Minnette Miles v. U.S. Postal Service, Agency No. 4F-900-0010-08.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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