Wade H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jul 27, 2018

0120161685 (E.E.O.C. Jul. 27, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Wade H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120161685

Hearing No. 541-2013-0008X

Agency No. 4E-800-0056-12

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated March 2, 2016, concerning his complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and 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 REVERSES the Agency’s decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Glendale Colorado branch office.

On April 28, 2012, Complainant filed a complaint alleging that the Agency subjected him to
discrimination on the bases of disability (back, psychological) and in reprisal for prior protected
EEO activity when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. On December 21, 2011 and January 6, 2012, he was informed that work he
previously performed was, “no longer available to [him],” and as a result, he has
been limited to two hours of work on a daily basis, resulting in a denial of benefits;
2. On March 28, 2012, his time and access to review his Personnel File was restricted;
3. Pursuant to an Agency letter dated December 2, 2011 (which he received on
December 9, 2011) his Life Insurance was cancelled effective, February 12, 2011;
4. In January 2012, he was made aware that the Agency had delayed and denied his
back pay and benefits;
5. Pursuant to a letter dated, February 17, 2012, the Manager, Labor Relations
indicated she wanted to be present during all of his Step A union grievance
meetings;
6. On March 28, 2012, he learned that Management had breached the Federal
Employees Compensation Act (FECA), by contacting his physician, affecting his
LWEC (Lost Wage Earning Capacity) which reduced his Office of Workers’
Compensation Program (OWCP) compensation; and
7. On March 28, 2012, he learned that the Labor Relations department had access to
his Injury Compensation File.

On June 28, 2012, the Agency dismissed claim (4) pursuant to 29 C.F.R. § 1614.107(a)(1), for
stating the same claim that is pending before or has been decided by the Agency or Commission.
The Agency also determined that claim (4) constituted a collateral attack on the grievance process.
Additionally, the Agency dismissed claim (7) for alleging a collateral attack on the OWCP process.
The Agency accepted the remaining claims for further processing.

At the conclusion of the investigation on Complainant’s accepted claims, the Agency provided
Complainant with a copy of the report of investigation and notice of his right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
requested a hearing.

On January 11, 2016, the Agency filed its Agency’s Motion to Subsume Disability Discrimination
Claim with the AJ handling the case. The Agency stated that Complainant alleged that on
December 21, 2011 and January 6, 2012, he was informed that work he previously performed was,
“no longer available to him,” and as a result, he had been limited to two hours of work on a daily
basis as a part of the Agency’s National Reassessment Process (NRP) process. The Agency argued
that the issues raised by Complainant in his case were similar, if not identical, to at least one of the
categories identified in the *** et al. v. U.S. Postal Serv., Agency No. 4B-140-0062-06 (EEOC
No. 520-2008-00053X) - class complaint). The Agency claimed that all of Complainant’s claims
were intertwined with the disability discrimination issue in the class complaint. Thus, the Agency
asserted the AJ should issue an Order subsuming Complainant’s entire complaint within the class
complaint.

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On March 2, 2016, the AJ issued an Order Subsuming Disability Discrimination Complaint. The
AJ noted that Complainant alleged that, “On December 21, 2011 and January 6, 2012, he was
informed that work he previously performed was ‘no longer available to [him]’ pursuant to the
NRP.”

The AJ noted that in 2007, a complaint was filed challenging the NRP. The Agency noted this
case was certified as a class complaint in *** et al. v. U.S. Postal Service, EEOC No. 520-2008-
00053X. The AJ noted that the class was defined 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 of 1973.

The AJ noted that on January 14, 2010, the Commission certified the class and allowed potential
class members to proceed on four theories. The AJ stated that the theory most applicable in
Complainant’s case is “The class may attempt to prove that the NRP discriminatorily denied them
reasonable accommodation when their assignments were removed or changed.”

The AJ stated having reviewed Complainant’s allegations and the decision in the *** et al. v. U.S.
Postal Serv. (class complaint), she concluded that Complainant’s case should be subsumed in that
class complaint. Thereafter, on March 16, 2016, the Agency issued a final decision subsuming
Complainant’s complaint into the *** et al. v. U.S. Postal Serv. (class complaint).

On appeal, Complainant claims that his complaint is not related to the *** et al. v. U.S. Postal
Serv. (class complaint). Specifically, Complainant argues that the Agency’s denial of work was
not related to the Agency’s NRP which ended in January 2011.

ANALYSIS AND FINDINGS

*** et al. v. U.S. Postal Serv. (Class Complaint)

On August 7, 2007, a Class Agent filed a class complaint, alleging that the Agency’s
implementation of the NRP had subjected injured-on-duty (IOD) employees to a pattern and
practice of disability discrimination. The AJ assigned to the case defined the class as consisting
of rehabilitation and limited-duty IOD employees whose positions had been assessed under the
NRP since May 5, 2006. The AJ categorized the Class Agent’s claims into four broad categories:
withdrawal of reasonable accommodations; hostile work environment; disclosure of confidential
medical information; and disparate impact. Over the Agency’s objections, the AJ certified the
complaint as having met the prerequisites for class certification. In *** et al., v. U.S. Postal Serv.,
EEOC Appeal No. 0720080054 (Jan. 14, 2010), the Commission affirmed the AJ’s decision.

Thereafter, the class complaint proceeded to an AJ for a hearing on the merits. In EEOC Appeal
Nos. 0720160006 & 0720160007 (Sept. 25, 2017), in relevant part, the Commission reversed the
Agency’s final order rejecting the findings of discrimination made by summary judgment by the
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AJ in favor of the class. The Commission noted the NRP was in existence from May 6, 2006, to
July 1, 2011. The Commission’s decision affirmed the AJ’s finding that the Class Agent
established that the NRP subjected qualified rehabilitation and limited-duty IOD employees to
disparate treatment and resulted in rehabilitation and limited-duty IOD employees with disabilities
having their reasonable accommodations withdrawn, as well as being subjected to disability-based
harassment and having their confidential medical information assessed by unauthorized persons.
Based on a de novo review of the record, the Commission also found that Phase 1 of the NRP (the
process used to identify all IOD employees who were either in limited-duty or rehabilitation status)
constituted an unlawful medical inquiry to which the class of rehabilitation and limited-duty IOD
employees were subjected.

The AJ also issued a separate decision making findings of discrimination in favor of the Class
Agent as an individual. The AJ determined, in relevant part, that the Class Agent was
discriminated against based on her disability when she was disparately treated and her reasonable
accommodation was withdrawn. The Agency rejected this finding and appealed to the
Commission. In EEOC Appeal Nos. 0720160006 & 0720160007, the Commission found that the
Class Agent, having established that she was a qualified individual with a disability, was eligible
for immediate relief regarding disparate treatment and withdrawal of reasonable accommodation.
The Commission also found the Class Agent was eligible for immediate relief for a hostile work
environment, having established she was a qualified individual with a disability who was subjected
to a tangible employment action. The Commission further found that having established that she
was subjected to an unlawful disability-related medical inquiry and the confidentiality of her
medical records was compromised via Phase 1 of the NRP, the Class Agent was eligible for
immediate relief.

The Agency requested the Commission reconsider its decision in EEOC Appeal Nos. 0720160006
& 0720160007. The Commission denied the Agency’s request in EEOC Request Nos.
0520180094 & 0520180095 (Mar. 9, 2018).

Upon review, we note that the Commission’s previous decisions in EEOC Appeal Nos.
0720160006 & 0720160007 (Sept. 25, 2017), req. for recons. den., Request Nos. 0520180094 &
0520180095 (Mar. 9, 2018), stated that the *** et al. v. U.S. Postal Service class concerned a class
of Agency employees consisting of rehabilitation and limited-duty IOD employees whose
positions were assessed by the Agency’s NRP between May 5, 2006 and July 1, 2011. In the
present case, Complainant contends he was subjected to discrimination on December 21, 2011 and
January 21, 2011, when he was informed that work he previously performed was, “no longer
available to [him], and as a result, he has been limited to two hours of work on a daily basis,
resulting in a denial of benefits.” As Complainant’s claim occurred after the conclusion of the
NRP on July 1, 2011, we find it did not involve the NRP. Accordingly, we determine that the
complaint does not fall within the *** et al., v. U.S. Postal Serv. class complaint.

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We shall remand the complaint so that Complainant can have an opportunity for a hearing before
an AJ. We find it is in the interests of judicial economy to not consider the dismissed claims at this
time and to remand them for consideration with the remainder of the complaint. If the AJ feels
these claims are properly dismissed then the AJ may re-dismiss these claims.

CONCLUSION

Accordingly, the Agency’s final decision to hold Complainant’s complaint in abeyance is
REVERSED and we REMAND the complaint to the Agency for further processing in accordance
with the Order herein.

ORDER

The Agency shall submit to the Hearings Unit of the appropriate EEOC Field or District Office a
request for a hearing on the remanded complaint within thirty calendar days of the date this
decision was issued. The hearing request must include a brief explanation that it is being made
pursuant to this decision, and be accompanied with the complaint and investigative files and a
copy of this decision. The Agency shall provide a copy of the hearing request to the Compliance
Officer at the address set forth herein, and a copy to Complainant and his representative.
Thereafter, an Administrative Judge shall issue a decision on the complaint in accordance with 29
C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R.
§1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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).
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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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 27, 2018
Date