0320130026
08-07-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0320130026
MSPB Nos. SF-0353-10-0962-I-1, SF-0353-11-0858-I-1
DECISION
On October 19, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a September 20, 2012 final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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 the events at issue, Petitioner worked as a Rural Carrier at the Agency's Fairfield Main Post Office in California.
I. MSPB No. SF-0353-10-0962-I-1 (First Restoration Appeal)
On August 26, 2010, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency violated his restoration rights and discriminated against him on the basis of disability when, on July 23, 2010, he was notified that, based on his refusal to accept a modified limited duty position, the Agency no longer had work within his medical restrictions and he was sent home. As part of his appeal, Petitioner submitted a July 23, 2010 restoration request in which he stated that he had been targeted for implementation of the Agency's National Reassessment Process (NRP).
On April 25, 2011, an MSPB Administrative Judge (MSPB AJ) issued an initial decision finding that Petitioner failed to prove that the Agency had committed an arbitrary and capricious denial of his restoration rights or subjected him to disability discrimination. The MSPB AJ noted that, in his appeal, Petitioner alleged that the Agency failed to accommodate his disability when it sent him home pursuant to the NRP.
On May 29, 2011, Petitioner sought review by the full Board.
II. MSPB No. SF-0353-11-0858-I-1 (Second Restoration Appeal)
On July 27, 2010, Petitioner filed an EEO complaint with the Agency (Agency No. 4F-945-0235-10) alleging discrimination when management engaged him in multiple NRP meetings (May 4, 2010, June 24, 2010, July 9, 2010, July 23, 2010) and eventually reduced the amount of work hours provided to him. Only the box for disability discrimination was checked on the formal complaint form, but the narrative summary also mentioned retaliation.
On August 13, 2010, the Agency issued a final decision holding Petitioner's complaint in abeyance and subsuming it within a pending class complaint, McConnell, et al. v. U.S. Postal Service (Agency No. 4B-140-0062-06). Petitioner appealed the Agency's final decision to the Commission.
On February 3, 2011, in EEOC Appeal No. 0120103659, the Commission affirmed the Agency's final decision to subsume Petitioner's disability claim within the McConnell class action. The Commission, however, found that Petitioner's complaint included a retaliation claim and remanded that to the Agency for further processing under 29 C.F.R. � 1614.108.
On March 7, 2011, the Agency acknowledged and accepted Petitioner's remanded retaliation claim as a mixed case complaint (Agency No. 4F-945-0312-10) because the claim involved his restoration rights. On August 9, 2011, the Agency issued a mixed case final decision finding no retaliation. On September 10, 2011, Petitioner filed an appeal with the MSPB from the Agency's mixed case final decision.
On January 10, 2012, the MSPB AJ dismissed Petitioner's appeal without prejudice to the refiling of the appeal within 30 days of the Board's final decision in the first restoration appeal. Specifically, the MSPB AJ found that the MSPB had jurisdiction over the second restoration appeal, that it was undisputed that Petitioner did not raise a retaliation claim in his first restoration appeal, and that the issues in the first and second restoration appeals were identical, with the exception of the retaliation claim. Moreover, the MSPB AJ found that, in evaluating whether Petitioner's retaliation claim was barred by the doctrines of collateral estoppel or res judicata, it was appropriate to await the Board's final decision in the first restoration appeal.
On February 14, 2012, Petitioner sought review by the full Board.
III. MSPB Final Order
On September 20, 2012, the MSPB joined the two appeals and issued a final order.
Regarding the first restoration appeal, the MSPB granted Petitioner's petition for review, reversed the MSPB AJ's initial decision as to the restoration claim, but affirmed the MSPB AJ's initial decision as to the disability discrimination claim. The MSPB noted, among other things, that the appeal involved the NRP.
Regarding the second restoration appeal, the MSPB dismissed it as barred by the doctrine of res judicata. Specifically, the MSPB found that it had jurisdiction over the matter because the Agency's alleged retaliatory actions involved Petitioner's restoration rights. Moreover, the MSPB found that Petitioner's retaliation claim "simply constitutes a new legal theory regarding the [A]gency's asserted denial of his restoration rights that he could have raised in his first appeal."
ARGUMENTS IN PETITION
In his petition, Petitioner requested that the Commission find disability discrimination and retaliation. Regarding disability discrimination, Petitioner argued that the MSPB erred in finding that the Agency provided him with a reasonable accommodation. Regarding retaliation, Petitioner argued that the MSPB erred in dismissing his claim. Specifically, Petitioner asserted that the MSPB did not have jurisdiction over his retaliation claim and that he did not desire or intend for his retaliation claim to end up before the MSPB.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and mixed case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq.
First Restoration Appeal - Disability Discrimination
The Commission takes note that on May 30, 2008, an EEOC Administrative Judge granted class certification in McConnell, et al. v. U.S. Postal Service, and defined the class as all permanent rehabilitation employees and limited duty employees employed nationwide by the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act. The EEOC Administrative Judge further defined the McConnell claims into the following broad categories: (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 appealed the certification decision to the Commission. The Commission agreed with the EEOC Administrative Judge's definition of the class and the claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the EEOC Administrative Judge's certification of the class. McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010).
Based on our review of the record, we find that Petitioner's claim of disability-based discrimination in this matter falls squarely within the definition of the McConnell class action and should be subsumed therein.
Because the McConnell class action has been certified and is currently pending before an EEOC Administrative Judge for adjudication on the merits, Petitioner's Rehabilitation Act claim of discrimination is not currently ripe for appellate review by this Commission. Therefore, in the interest of judicial economy and fairness, and to avoid the potential of conflicting decisions on the same issue, the Commission will hold the instant petition for review of the decision of the MSPB, as it pertains to MSPB No. SF-0353-10-0962-I-1, in abeyance until such time as a decision has been rendered on the merits of the McConnell class action. The Commission has previously held in abeyance petitions that include a disability claim within the McConnell class action. See Ray v. U.S. Postal Serv., EEOC Petition No. 0320120064 (Apr. 17, 2013); Casis v. U.S. Postal Serv., EEOC Petition No. 0320100010 (Aug. 26, 2010).
Second Restoration Appeal - Retaliation
The MSPB procedurally dismissed Petitioner's second restoration appeal, which included his claim of retaliation, on the basis of res judicata. The Commission has no jurisdiction over procedural matters of the MSPB. Because the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's second restoration appeal. Consequently, the Commission denies the instant petition for review, as it pertains to MSPB No. SF-0353-11-0858-I-1. The Commission has previously denied consideration of petitions where the MSPB dismissed the appeal as barred by the doctrine of res judicata. See EEOC Petition No. 0320140016 (Mar. 21, 2014); Muyco v. Office of Pers. Mgmt., EEOC Petition No. 0320070058 (May 24, 2007); Throckmorton v. Dep't of the Interior, EEOC Petition No. 0320070008 (Dec. 7, 2006).
CONCLUSION
The Commission places in abeyance Petition No. 0320130026, as it pertains to MSPB No. SF-0353-10-0962-I-1, and no decision reviewing the MSPB's decision on Petitioner's disability claim will be issued until a decision has been rendered on the merits of the McConnell class action or other intervening events make review appropriate.
The Commission denies consideration of Petition No. 0320130026, as it pertains to MSPB No. SF-0353-11-0858-I-1.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
___8/7/14_______________
Date
2
0320130026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320130026