Roger E. Stuckey, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionFeb 17, 2012
0120112201 (E.E.O.C. Feb. 17, 2012)

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0120112201

02-17-2012

Roger E. Stuckey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.




Roger E. Stuckey,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120112201

Agency No. 4H-390-0005-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated February 3, 2011, dismissing 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., 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 Modified Clerk at the Agency’s Larkin Smith Station

in Gulfport, Mississippi. On November 22, 2010, Complainant filed a

formal complaint alleging that the Agency subjected him and a class of

employees to discrimination on the bases of sex (male), disability (not

specified), age (48), and reprisal for prior protected EEO activity,

members of the class were adversely affected by being removed from

the installation where they normally work while injured carriers were

allowed to continue to work in their craft and installations where they

normally work. Complainant asserted that this occurred on September 10,

2010, October 2, 2010, and October 9, 2010.

The Agency defined the claim as, when on September 10, 2010, Complainant

was only allowed to use two hours of leave per day and subsequently

reassigned to another installation. The Agency dismissed the complaint

pursuant to 29 C.F.R. § 1614.107(a)(1) finding that the complaint at hand

was, in essence, the same claim as Complainant’s prior EEO complaint,

namely, Agency No. 4H-390-0026-10. The Agency noted that the previous

complaint’s claim of disability based discrimination was subsumed

in the McConnell class action, McConnell v. U.S. Postal Serv., Agency

No. 48-140-0062-06. The Agency found that Complainant merely tried

to resurrect his prior complaint outside of the McConnell class action.

The Agency found that Complainant’s two complaints involved the same

claim and, therefore, dismissed the instant matter.

CONTENSIONS ON APPEAL

Complainant appealed asserting that the instant complaint was not the same

claim has his prior EEO complaint. Complainant indicated that the claim

did not involve the McConnell class action for he was not alleging the

reassignment but the fact that he and other injured employees were not

permitted to perform the old assignments which are now being performed

by other employees. The Agency requested that the Commission affirm

the Agency’s dismissal.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that

is pending before or has been decided by the agency or Commission.

We note that in the prior complaint, Complainant asserted that he was

subjected to discrimination when on December 12, 2009, the hours of

Complainant’s limited duty position changed. However, in the instant

matter, Complainant asserted that events raised in instant complaint

occurred on September 10, 2010, October 2, 2010, and October 9, 2010.

As such, we find that the events raised in the instant matter are not

the same as the events raised in Complainant’s prior EEO complaint.

Complainant also alleged in his formal complaint that employees were

issued disciplinary action. The record includes a suspension issued to

Complainant in September 2010. We find that these events are outside

of the scope of the prior EEO complaint. Therefore, we conclude that

the Agency’s dismissal was not appropriate.

We note that Complainant has asserted that he and others were harmed

when employees were permitted to work in their assigned positions.

Further, they were removed from their position pursuant to the National

Reassessment Program (NRP). To the extent Complainant has indicated

that there was full time work to which he could have been reassigned, but

for the NRP, such a claim should be subsumed within the McConnell class

action. On May 30, 2008, an EEOC Administrative Judge (AJ) granted class

certification in McConnell et, al v. U.S. Postal Serv., 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.1

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 chose not 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 v. U.S. Postal

Serv., EEOC Appeal No. 0720080054 (January 14, 2010).

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 Serv., 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 should hold complainant's claim

of disability discrimination in abeyance. Specifically, in his formal

complaint, Complainant alleged that the Agency took Complainant’s

prior assignment and gave it to other employees. Moreover, the records

reflect that Complainant was in limited duty position due to his medical

limitations. This claim of disability discrimination should be subsumed

within the McConnell, et al. class action.

We also note that Complainant has alleged that he was subjected to

discrimination based on age, sex, and reprisal. Such claims are outside

of the McConnell, et al. class action, and should be processed as ORDERED

below. In addition, Complainant was issued a suspension for failure to

follow instructions. There is no indication that the suspension was

issued pursuant to the NRP. Therefore, the suspension should also be

processed as a separate claim of discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we REVERSE the

Agency’s final decision and REMAND the matter for further processing

in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claims (the suspension

issue as well as Complainant’s claim of discrimination on the bases

of age, sex, and reprisal) in accordance with 29 C.F.R. § 1614.108.

The Agency shall acknowledge to the Complainant that it has received

the remanded claims within thirty (30) calendar days of the date this

decision becomes final. The Agency shall issue to Complainant a copy

of the investigative file and also shall notify Complainant of the

appropriate rights within one hundred fifty (150) calendar days of the

date this decision becomes final, unless the matter is otherwise resolved

prior to that time. If the Complainant requests a final decision without

a hearing, the Agency shall issue a final decision within sixty (60)

days of receipt of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

The Agency shall subsume Complainant’s disability claim regarding

the assignment in the McConnell, et. al class action. A copy of the

Agency’s letter of acknowledgment that the matter has been subsumed

by the class action shall be provided 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 17, 2012

__________________

Date

1 EEOC Hearing No. 520-2008-00053X.

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0120112201

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120112201