0120102782
09-27-2010
Marguerite B. Bertrand, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Marguerite B. Bertrand,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120102782
Agency No. 4B140006206
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 11, 2010, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly included Complainant's disability claim in the class complaint of McConnell v. John E. Potter.
BACKGROUND
At all times relevant to the alleged discriminatory events, Complainant worked as an AMS Clerk at the Agency's Oak Street Station in Kissimmee, Florida. In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female), color (white) and disability (physical) when:
1. On January 12, 2010, she was informed during a National Reassessment Program (NRP) meeting that there would be no work available for her at the Kissimmee facility.
FINAL AGENCY DECISION
In its decision dated May 11, 2010, the Agency determined that the claims raised in Complainant's complaint were "identical" to those raised in Sandra McConnell v. John E. Potter, Agency No. 4B-140-0062-06; EEOC No. 520-2008-00053X. On these grounds the Agency subsumed Complainant's complaint within the McConnell class.
AGENCY'S REVISED ACCEPTANCE LETTER
On July 26, 2010, the Agency issued a revised acceptance letter. In this regard, the Agency accepted Complainant's complaint as a mixed case with appeal rights to the Merit System Protection Board (MSPB). It noted that EEO Case No. 4H-335-0112-10 was being held in abeyance under the McConnell, et. al. v. United States Postal Service, Agency No. 4B-140-0062-06 as it relates to Complainant's disability discrimination claim. In revision of its previous decision, however, the Agency accepted Complainant's remaining bases of discrimination (color and sex) for investigation, for which it assigned a separate EEO Case No. 4H-335-0213-10.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency submitted arguments on appeal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103, � 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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. 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."
We note that on May 30, 2008, an EEOC Administrative Judge (AJ) granted class certification in McConnell. et. al, which defined the class 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 AJ defined the McConnell claims into the following broader complaint: (1) The NRP fails to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, fails to include an interactive process and improperly withdraws existing accommodation); (2) The NRP creates a hostile work environment; (3) The NRP wrongfully discloses medical information; and (4) The NRP has an adverse impact on disabled employees. The Agency chose not to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the McConnell claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell v. USPS, EEOC Appeal No. 0720080054 (January 14, 2010).
Upon review, we find that the Agency correctly held Complainant's claim of disability discrimination in abeyance. Specifically, in her formal complaint, Complainant alleged that the agency informed her during a National Reassessment Program (NRP) meeting that there would be no work available for her at the Kissimmee facility. This claim of disability discrimination is properly subsumed within the McConnell, et. al class. Accordingly, the Agency's decision to hold Complainant's claim of disability discrimination in abeyance is AFFIRMED.
With respect to the Agency's July 26, 2010, revised letter of acceptance, we find that Complainant's remaining bases of color and sex were properly accepted for investigation as they do not fall within the scope of McConnell, et. al.
CONCLUSION
Based on a thorough review of the record, the Commission AFFIRMS the Agency's decision to subsume Complainant's disabilility claim within the McConnell, et. al. class. To the extent that the Agency's May 11, 2010, decision held Complainant's bases of color and sex in abeyance, we find that this decision was improper. However, we find that the Agency's subsequent letter dated July 26, 2010, cured this error by accepting Complainant's color and sex bases for investigation. Accordingly, the Agency's final decision, as MODIFIED, by its July 26, 2010 letter, 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
___9/27/10_______________
Date
2
0120102782
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102782