Marilyn K. Robbins, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionJan 31, 2012
0120111120 (E.E.O.C. Jan. 31, 2012)

0120111120

01-31-2012

Marilyn K. Robbins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.




Marilyn K. Robbins,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Capital Metro Area),

Agency.

Appeal No. 0120111120

Agency No. 4K-220-0103-10

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated November 15, 2010, dismissing 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

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

as a Sales and Services Associate at the Agency’s Prince William

Branch Post Office in Woodbridge, Virginia. On October 25, 2010,

Complainant filed a formal complaint alleging that the Agency subjected

her to discrimination on the bases of race (Caucasian), color (White),

national origin (not specified), sex (female), age (not specified), and

disability (not specified) when, on September 24, 2010, Complainant was

called into the Manager’s office after swiping her time card and hitting

the clock. Complainant indicated that the Manager and three others met

to let her know that, due to the National Reassessment Program (NRP),

it was determined that there was “no work available” and Complainant

was sent home.

The Agency determined that Complainant's claim of disability

discrimination falls within the pending class action, McConnell, et

al. v. U.S. Postal Serv., Agency Case No. 4B-140-0062-06. Thus, the

Agency determined Complainant's claim of disability discrimination would

be subsumed in the McConnell, et al. complaint.

In 2004, the Agency began the development of the NRP, an effort to

“standardize” the procedure used to assign work to injured-on-duty

employees. In the class complaint, McConnell claims that the Agency failed

to engage in the interactive process during the NRP in violation of the

Rehabilitation Act. Further. McConnell claims the Agency allegedly failed

to reasonably accommodate class members during and after the process.

On May 30, 2008, an EEOC Administrative Judge (AJ) granted class

certification in McConnell, et al. v. U.S. Postal Service, 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 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 McConnell claims,

as stated above. Accordingly, the Commission reversed the Agency's

final order rejecting the AJ's certification of the class. McConnell, et

al. v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (January 14, 2010).

In its decision, the Agency states that Complainant's complaint based on

disability was properly placed in abeyance pending the McConnell class

complaint. Moreover, the Agency argues that parallel processing of an

individual complaint and a class complaint arising out of the exact

same facts, would not serve the principle of judicial economy. Rather,

the Agency states it would result in unnecessary expenditure of Agency

resources and would potentially subject the Agency to conflicting

decisions and duplicative liability. The Agency notes that Complainant's

complaint; insofar as it is based on race, color, sex, national origin,

and age; is being processed as an individual complaint. Agency Decision,

November 15, 2010, at 1, footnote.

Complainant appealed asserting that she held a bid position which she

has performed with a reasonable accommodation. In essence, Complainant

argued that she was erroneously included in the NRP. The Agency requested

that the Commission affirm its decision to subsume Complainant’s claim

of disability-based discrimination and Complainant’s remaining bases

be processed as an individual complaint.

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 Serv., 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 in abeyance. Complainant acknowledges

that she was injured and given a position in 2004. The record reveals

that on September 24, 2010, Complainant received an Employee Leave

Information Letter, Complete Day indicating that pursuant to the NRP it

was determined there were not enough available necessary tasks within

Complainant's medical restrictions to complete a full day of work.

Although Complainant argued that she should not have been included in the

NRP, the record indicated that she was sent home based on an assessment

made pursuant to the NRP. Therefore, we find Complainant's claim of

disability discrimination is properly subsumed within the McConnell,

et al. class action.

We also find that the Agency properly severed Complainant's claim of sex

discrimination and indicated that claim was being processed separately

under case number 4K-220-0108-10. That claim does not fall within the

scope of McConnell, et. al. and therefore is appropriately addressed

separately.

CONCLUSION

Accordingly, the Agency's final decision to hold Complainant's claim of

disability discrimination in abeyance and process the claim of sex, race,

color, national origin and age discrimination separately 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

January 31, 2012

__________________

Date

2

0120111120

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120111120