0120110968
04-28-2011
Patchamkulam T. Alexander, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Patchamkulam T. Alexander,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110968
Agency No. 1G-754-0015-11
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated November 22, 2010, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency's North Texas Processing and
Distribution Center facility in Coppell, Texas. On November 11, 2010,
Complainant filed a complaint alleging that the Agency subjected him to
discrimination on the bases of disability (plantar fasciitis) and age
(56) when:
On September 16, 2010, management sent Complainant home stating there
was no work for Complainant within his limitations.
The Agency determined that Complainant's claim of disability
discrimination falls within the pending class action, McConnell,
et al. v. U.S. Postal Service, Agency Case No. 4B-140-0062-06. Thus,
the Agency determined Complainant's claim of disability discrimination
would be subsumed in the McConnell complaint.
In 2004, the Agency began the development of the National Reassessment
Process (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
Service, 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. 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 properly held Complainant's claim
of disability discrimination in abeyance. In the course of processing
Complainant's claims, Complainant stated that he as been performing the
same modified job since 1997 and that the work he performed remains to
be done. Information for Pre-Complaint Counseling, October 20, 2010,
at 1. By memorandum dated September 16, 2010, Complainant was informed
that following the guidelines established by the National Reassessment
Process (NRP), the Agency was unable to identify any available necessary
tasks within his medical restrictions. Memorandum Re: Employee Leave
Information Letter, Complete Day, September 16, 2010; Record on Appeal
(ROA) at 25. Finally, we note the record contains a National Reassessment
Process, Phase 2, Limited Duty; Priority for Assignment Worksheet showing
that several searches for adequate work within Complainant's restrictions
was conducted in September 2010. ROA at 27. 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 age
discrimination and indicated that claim was being processed separately
under case number 1G-754-0030-11. That claim does not fall within the
scope of McConnell, et al. and is therefore 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 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
April 28, 2011
__________________
Date
2
0120110968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110968