Marie M. Ryan, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionAug 2, 2011
0120093313 & 0120090401 (E.E.O.C. Aug. 2, 2011)

0120093313 & 0120090401

08-02-2011

Marie M. Ryan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.




Marie M. Ryan,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Capital Metro Area),

Agency.

Appeal Nos. 0120093313, 0120090401

Hearing No. 570-2009-0095X

Agency Nos. 1K-221-0012-08, 1K-221-0024-08

DECISION

On November 1, 2008 and August 5, 2009, Complainant filed appeals from the

Agency’s decisions dated October 1, 2008 and July 1, 2009 concerning

her equal employment opportunity (EEO) complaints alleging 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. The Commission accepts the appeals pursuant to 29 C.F.R. §

1614.405(a). We have consolidated the appeals for review pursuant to 29

C.F.R. § 1614.606. For the following reasons, the Commission REVERSES

the Agency’s October 1, 2008 decision and VACATES the Agency’s July 1,

2009 decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency and the AJ erred in

holding claims 1 and 5 in abeyance and subsuming them into the Tighe

class action; (2) whether the AJ erred in subsuming claims 2 and 3 into

the Tighe class action; and (3) whether the Agency erred in issuing a

decision on the merits of claims 2 and 3.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a General Expeditor at the Agency’s Northern Virginia Processing

and Distribution Center in Merrifield, Virginia.

On June 5, 2008, Complainant filed a formal complaint (Agency

No. 1K-221-0012-08) alleging that the Agency discriminated against her

on the bases of race (Caucasian), national origin (Native American),

and disability (deafness) when:

1. on February 7, 2008, she was not provided an interpreter to

discuss her work assignment with management;

2. on February 7, 2008, February 8, 2008, and March 5, 2008,

management did not appropriately investigate her sexual harassment

allegation against a co-worker;

3. on February 15, 2008, she was issued a Letter of Warning;

4. on February 22, 2008, she was not provided with direct access to the

EEO Contact Center; and

5. on February 29, 2008, she was not provided weekly safety and service

talks when an interpreter was available.

On June 26, 2008, the Agency dismissed claim 4 pursuant to 29 C.F.R. §

1614.107(a)(8) for alleging dissatisfaction with the processing of the

instant complaint1 but accepted the remaining claims for investigation.

The Agency investigated claims 1-3 and 5.

On September 24, 2008, after the conclusion of the investigation, the

Agency provided Complainant with a copy of the report of investigation and

notice of her right to request a hearing before an EEOC Administrative

Judge (AJ). In addition, the Agency informed Complainant that, because

her complaint contained both class and non-class claims, it had separated

the claims into two different case numbers. With respect to claims 2

and 3, the Agency explained that they would be the only claims in Agency

No. 1K-221-0012-08. With respect to claims 1 and 5, the Agency explained

that they would be assigned a new case number (Agency No. 1K-221-0024-08)

and would be held in abeyance.

On October 1, 2008, the Agency issued a final decision (FAD1) holding

in abeyance claims 1 and 5 pending the outcome of the appeal of the

class certification decision in Tighe v. U.S. Postal Service, Agency

No. 1E-801-0070-04. Tighe, a class complaint filed in July 2004,

alleged that the Agency failed to provide sign language interpreters to

deaf employees.

On October 24, 2008, Complainant requested a hearing before an AJ in

Agency No. 1K-221-0012-08. Although the Agency had previously indicated

that Agency No. 1K-221-0012-08 would involve only claims 2 and 3, the

hearing record reflects that claims 1 and 5 were also before the AJ.

On March 23, 2009, Complainant filed a motion to amend and consolidate her

complaint to add additional allegations that she was not provided weekly

safety and service talks in February and March 2009 when an interpreter

was available. On March 27, 2009, the Agency filed a motion to hold in

abeyance Complainant’s complaint and amendments pending a decision on

class certification in Tighe.

On April 9, 2009, the AJ issued an order granting Complainant’s motion

to amend and subsuming the “consolidated complaint” into the Tighe

class action.

On July 1, 2009, the Agency issued a final decision (FAD2) addressing

the merits of claims 2 and 3. In the chronology section, the Agency

stated, among other things, the following: (a) the AJ “ordered that

the certified interpreter issues be subsumed;” (b) the order “did

not account for non-class issues included in the complaint; and (c)

“thus, this decision is being issued on the merits of [claims 2 and

3].” The Agency found that Complainant failed to prove that the Agency

discriminated against her as alleged in claims 2 and 3.

CONTENTIONS ON APPEAL

Neither party submitted a statement or brief on either appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to

29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo

review by the Commission. 29 C.F.R. § 1614.405(a). See EEO MD-110,

Ch. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard

of review “requires that the Commission examine the record without

regard to the factual and legal determinations of the previous decision

maker,” and that EEOC “review the documents, statements, and testimony

of record, including any timely and relevant submissions of the parties,

and . . . issue its decision based on the Commission’s own assessment

of the record and its interpretation of the law”).

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 Serv., EEOC Request No. 05920101 (Feb. 13, 1992).

In addition, EEO MD-110, Chapter 8, § III(C) 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 first examine clams 1, 5, and the amended claim. Upon review, we find

that the Agency and the AJ improperly held these claims in abeyance and

subsumed them into the Tighe class action (FAD1 and the AJ’s order).

In these claims, Complainant alleged that she was denied sign language

interpreter services in 2008 and 2009. The duty to provide reasonable

accommodation is ongoing and the Tighe class action was filed in 2004 –

four or five years prior to the instant matter. This determination is

consistent with our previous appellate decisions where we reversed final

agency decisions that held complaints on relatively recent matters in

abeyance due to the Tighe case. See Hobbins-Tabron v. U.S. Postal Serv.,

EEOC Appeal No. 0120101131 (June 17, 2010); Tackett v. U.S. Postal Serv.,

EEOC Appeal No. 0120092364 (June 17, 2010); Plock v. U.S. Postal Serv.,

EEOC Appeal No. 0120100988 (May 18, 2010); Whalen v. U.S. Postal Serv.,

EEOC Appeal No. 0120093715 (Feb. 25, 2010), req. for recons. den.,

EEOC Request No. 0120093086 (May 10, 2010); Soto v. U.S. Postal Serv.,

EEOC Appeal No. 0120093086 (Nov. 10, 2009); Ortiz v. U.S. Postal Serv.,

EEOC Appeal Nos. 0120090061 & 0120092867 (Nov. 6, 2009). Accordingly, we

REVERSE FAD1 and REMAND claims 1, 5, and the amended claims for a hearing.

We next examine claims 2 and 3. Upon review, we find that the AJ

improperly subsumed these claims into the Tighe class action (AJ’s

order). In these claims, Complainant alleged that management did not

appropriately investigate her sexual harassment allegation against a

co-worker and that she was issued a Letter of Warning. These claims are

not similar to the claim raised in the Tighe case. Moreover, we find that

the Agency erred in issuing a decision on the merits of claims 2 and 3

(FAD2). The Agency did not provide a reason for issuing a decision

on the merits, aside from its determination that the AJ subsumed only

the interpreter issues and “did not account” for claims 2 and 3.

However, our review of the AJ’s order reflects that he subsumed

Complainant’s “consolidated complaint” without distinguishing

between the different claims. We find that the Agency’s issuance

of FAD2 deprived Complainant of her right to a hearing. Accordingly,

we VACATE FAD2 and REMAND claims 2 and 3 for a hearing.

CONCLUSION

Based on a thorough review of the record, we REVERSE the Agency’s

October 1, 2008 final decision (FAD1), VACATE the Agency’s July 1, 2009

final decision (FAD2), and REMAND claims 1, 2, 3, 5, and the amended

claims to the Agency for further processing in accordance with this

decision and the Order below.

ORDER

The Agency shall submit to the Hearings Unit of the Washington, DC Field

Office the request for a hearing within fifteen (15) calendar days of

the date this decision becomes final. The Agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within fifteen (15)

calendar days of the date this decision becomes final. The Agency shall

provide written notification to the Compliance Officer at the address set

forth below that the complaint file has been transmitted to the Hearings

Unit. Thereafter, the 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 (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

_______8/2/11___________

Date

1 Complainant did not specifically contest the Agency’s dismissal of

claim 4 on appeal. Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (MD-110), Ch. 9, § IV.A (Nov. 9, 1999) provides

that the Commission has the discretion to only review those issues

specifically raised on appeal. Accordingly, we will not the address

the Agency’s dismissal of claim 4 in the decision herein.

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