0120120423
03-09-2012
Mary Miskanis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Mary Miskanis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120120423
Hearing No. 443-2011-00099X
Agency No. 1J602007610
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 24, 2011, 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
At the time of events giving rise to this complaint, Complainant worked
as a Mailhandler at the Agency’s Palatine PD&C facility in Palatine,
Illinois.
On September 22, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of disability
when in June 2010, she received an Offer of Withheld Residual Vacancy
list for impacted employees due to excessing and all of the jobs required
full duty; in July 2010, management failed to reasonably accommodate her
medical restrictions, forcing her to apply for disability retirement;
and on October 1, 2010, she received a letter notifying her that
she would be involuntarily reassigned from her mailhandler position;
and when she was constructively discharged from her mailhandler position.
The Agency accepted the Complainant and undertook
an investigation. Thereafter Complainant requested a hearing.
On September 19, 2011, the Administrative Judge (AJ) issued an order
to subsume the Complainant within the McConnell class action law suit,
noting that all of the claims raised in the complaint were related to
the Agency’s National Reassessment Process (NRP).
In its final decision, the Agency adopted the AJ’s recommendation,
and stated that Complainant's formal complaint was being held in abeyance
pending the outcome of an appeal of a certification decision in a class
complaint. Specifically, the Agency determined that the disability
claims raised in complainant's complaint were identical to the claim(s)
raised in McConnell, et. al. v. United States Postal Service (Agency
No. 4B-140-0062-06). 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, the Agency allegedly failed
to reasonably accommodate class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ2) granted class
certification in McConnell, et. al,1 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 AJ2 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
AJ2’s definition of the class and the McConnell claims, as stated above.
Accordingly, the Commission reversed the Agency's final order rejecting
the AJ2's certification of the class. McConnell v. USPS, EEOC Appeal
No. 0720080054 (January 14, 2010). .///
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. 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.”
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 placed her in a position
that required full duty, failed to accommodate her, involuntarily
reassigned her from her mailhandler position; and constructively
discharged her Moreover, the records reflect that Complainant was in
a limited duty position due to her medical limitations. This claim
of disability discrimination is properly subsumed within the McConnell
class action.
Accordingly, the Agency's decision to hold Complainant's claim of
disability discrimination in abeyance is AFFIRMED. The claim is now
subsumed in the McConnell class action.
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
March 9, 2012
__________________
Date
1 EEOC Hearing No. 520-2008-00053X.
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0120120423
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120423