0120103659
02-03-2011
Roque C. Torres, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Roque C. Torres,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120103659
Agency No. 4F-945-0235-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated August 13, 2010, dismissing Complainant's 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. For the following reasons, the Commission MODIFIES the Agency's final decision.
BACKGROUND
In a formal complaint, Complainant alleged that the Agency subjected Complainant to discrimination on the basis of disability when: beginning on May 4, 2010, and continuing, the Agency's District Assessment Team (DAT) and Fairfield Management have issued, rescinded, and modified multiple "Employee Leave Letters" to Complainant.
The Agency determined that Complainant's complaint 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 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).
On appeal, Complainant states that in addition to alleging discrimination based on disability, the complaint also alleged discrimination in retaliation for prior protected EEO activity. Specifically, Complainant notes that although not specifically addressed on the face of the formal complaint form, in an attachment to the complaint, the complaint alleged that "management has repeatedly discriminated against complainant and has created a pattern of adverse treatment, retaliation, intimidation, and severe emotional distress." Moreover, Complainant argues that the Agency failed to show that the issues in the formal complaint were substantially similar to the issues in McConnell.
In response to Complainant's appeal, the Agency noted that Complainant alleged discrimination based on disability in that the District Assessment Team (DAT) made errors and omissions in the handling of Complainant's case within the National Reassessment Process. The Agency stated that as a permanent rehabilitation or limited duty employee of the Agency who was subjected to the NRP, Complainant is considered a member of the McConnell class. The Agency states that Complainant's case cannot be distinguished from the claims of other members of the class.
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. Specifically, in a formal complaint, Complainant alleged that the Agency subjected Complainant to discrimination on the basis of disability when: beginning on May 4, 2010, and continuing, the Agency's District Assessment Team (DAT) and Fairfield Management have issued, rescinded and modified multiple "Employee Leave Letters" to Complainant. A review of these letters reveals that they were conducted by the District Assessment Team pursuant to the National Reassessment Process (NRP), Phase 2, Limited Duty, to search for necessary tasks meeting Complainant's medical restrictions. Thus, Complainant's claim of disability discrimination is properly subsumed within the McConnell class action.
Moreover, we find that Complainant's formal complaint also included an allegation of discrimination in retaliation for prior protected activity. Specifically, we note that in an attachment to Complainant's formal complaint, Complainant alleged that "management has repeatedly discriminated against [Complainant] and has created a pattern of adverse treatment, retaliation, intimidation, and severe emotional distress." It is unclear precisely what action Complainant is alleging was motivated by retaliation. Therefore, on remand, the Agency shall afford Complainant the opportunity to clarify the claim based on retaliation and process accordingly.
CONCLUSION
Accordingly, the Agency's final decision to hold Complainant's disability claim in abeyance is AFFIRMED and the Agency's decision regarding the claim of reprisal is VACATED and the claim of reprisal is REMANDED to the Agency for further processing in accordance with the Order herein.
ORDER
The agency shall acknowledge to the complainant that it has received the remanded claim and request clarification of the claim as directed above within thirty (30) calendar days of the date this decision becomes final. Thereafter, the agency shall process the remanded claim (the reprisal claim) in accordance with 29 C.F.R. � 1614.108.
A copy of the agency's letter of acknowledgment and request for clarification to complainant must be sent to the Compliance Officer as referenced below.
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
February 3, 2011
__________________
Date
2
0120103659
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103659