0120121505
06-14-2012
Essaquena Harris, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Essaquena Harris,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120121505
Hearing No. 440-2011-00014X
Agency No. 1J-607-0031-10
DISMISSAL
Complainant filed an appeal with this Commission from a decision dated November 1, 2011, regarding 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 Mail Processing Clerk at the Processing & Distribution Center in Chicago, Illinois.
On May 25, 2010, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on or about October 2009, Management has refused to provide Complainant with a lumbar chair with lift; and
2. since March 29, 2010, Complainant has been told that there was no work available and been placed on standby because of the National Reassessment Process (NRP).1
Complainant subsequently amended her complaint to include a claim of discrimination based on disability and reprisal when:
3. on June 17, 2010, Complainant was given a job offer for two hours of work per day and her employment was threatened if she did not accept the job offer.
The Agency noted that Complainant's claims of disability-based discrimination in claims (2) and (3) were identical to the claims raised in the class complaint McConnell v. U.S. Postal Serv., Agency No. 1E-502-0001-11 and that these claims of disability-based discrimination would be held in abeyance and subsumed as part of the McConnell class complaint.2
The Agency accepted Complainant's claim of unlawful retaliation as stated in claims (1) - (3), as well as her disability claim raised in claim (1) for investigation. Following the investigation, on October 6, 2010, the Agency provided Complainant with a final decision with appeal rights to the Merit Systems Protection Board (MSPB). Rather than appealing the matter before the MSBP, on October 7, 2010, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ assumed the case. However, the AJ issued an Order to Subsume on November 1, 2011. In the Order, the AJ stated that the Agency should have subsumed Complainant's complaint as a whole within the McConnell class action. As such, the AJ dismissed the hearing request with an order for the Agency to subsume the complaint within the class action.
Complainant filed an appeal with the Commission noting that her claims of retaliation should be heard. She also requested that her claims of retaliation be consolidated with her other previously filed complaints which also alleged unlawful retaliation. The Agency requested that the Commission deny Complainant's appeal noting that it provided her with appeal rights to the MSBP, not for a hearing and/or an appeal with the EEOC.
ANALYSIS AND FINDINGS
As an initial matter, the Commission finds that Complainant has no right to appeal to the Commission at this juncture and her appeal is dismissed. As noted in the FAD, she should have appealed to the MSPB. If the MSPB determines it has jurisdiction and addresses the merits of her claims, she may then file a petition for review of the MSPB's decision on her discrimination claims with this Commission. If the MSPB determines it does not have jurisdiction, the Agency would then inform her of her right to request a hearing. However, Complainant cannot unilaterally decide that her case is not a mixed complaint. Further, it appears that the Agency complied with the Commission's regulations on mixed cases at 29 C.F.R. � 1614.302(d).3
CONCLUSION
Accordingly, Complainant's appeal is DISMISSED.
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
June 14, 2012
__________________
Date
1 In 2004, the Agency began the development of the National Reassessment Process (NRP), an effort to standardize the procedures used to assign work to employees injured on duty.
2 On May 30, 2008, an EEOC Administrative Judge granted class certification in McConnell and 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 of 1973."The AJ redefined the class agent's claims into the following broader issues: (1) the NRP fails to provide a reasonable accommodation; (2) the NRP wrongfully discloses medical information; (3) the NRP creates a hostile work environment; and (4) the NRP has an adverse impact on disabled employees. EEOC Hearing No. 520-2008-00053X. The Agency declined to implement the decision and appealed the matter to the Commission. The Commission, subsequently, agreed with the decision to certify the class and the McConnell claims, stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell, EEOC Appeal No. 0720080054 (Jan. 14, 2010).
3 The Commission also notes that the Agency properly determined to hold Complainant's claims (2) and (3) on the basis of disability in abeyance was correct, as it falls within the scope of McConnell. We do not find, however, that claim (1), and claims (2) and (3) alleging reprisal, fall within the McConnell class complaint. We find that the Agency correctly found that Complainant's claims of unlawful retaliation and the denial of the lumbar chair with lift should not be held in abeyance and are not subsumed within the McConnell class complaint. Therefore, if the MSPB determines that the matter is outside of its jurisdiction and Complainant requests a hearing, the AJ cannot order the Agency to hold Complainant's claim (1), and claims (2) - (3) on the basis of reprisal, in abeyance.
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0120121505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121505