Ethel Echols, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Ethel Echols v. United States Postal Service

01A50949

February 14, 2006

.

Ethel Echols,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01A50949

Agency No. 1H-381-0052-04

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her 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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission reverses the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Mail Processing Clerk at the agency's Bulk Mail Center

(BMC) in Memphis, Tennessee. Complainant sought EEO counseling and

subsequently filed a formal complaint on September 14, 2004, alleging that

she was discriminated against on the bases of race (African-American),

sex (female), and disability when the agency reassigned her from her

carrier craft position as a permanent rehabilitation employee at the

Memphis P&DC. She was excessed to the BMC to a tour 1 position that

carries no restrictions despite her medical limitations.

BACKGROUND

Complainant explains that for almost six years she worked in a permanent

rehabilitation position that was within her medical restrictions.

However, by letter of March 30, 2004, the agency notified her that it

was changing her Labor Distribution Code. The agency explained that

the change was for �accounting reporting purposes only and does not

affect the position, title, task assignments or any other element of

[her] modified [rehabilitation] position.� Letter from Manager, Human

Resources to complainant of 3/30/04. The letter further stated that she

would receive a �Notification of Personnel Action documenting the change

from LDC 69 to a base LDC of 18.� Id. On June 16, 2004, complainant

received another letter from the agency stating that she was being

involuntarily reassigned from the P&DC facility to the BMC facility

as a clerk craft employee. See Memorandum from BMC Plant Manager to

complainant of 6/16/04. Complainant argues that these changes took

her out of a permanent rehabilitation classification, despite the fact

that she has two injuries which her doctors documented as �permanent

injuries.� According to complainant, although her medical restrictions

have not changed, the agency did not take her restrictions into account

in assigning her new job duties. Consequently, she has had to work

full-duty jobs that have caused further deterioration of her medical

conditions.<0> See Statement on Appeal.

In its FAD, the agency determined that complainant's complaint fell into

the category of cases that must be held in abeyance pending the class

certification of Edmund Walker v. United States Postal Service, Agency

No. CC-800-0359-03, EEOC No. 320-A2-8390X. According to the agency,

the class sought by Walker to be certified consists of: �All permanent

rehabilitation employees whose duty hours have been restricted from

January 1, 2000 to the present, in violation of the Rehabilitation Act of

1973.� Agency Decision at 1. In her statement on appeal, complainant

neither admits nor denies that her claim falls into this category of

cases.

On May 29, 2002, Edmund C. Walker, the class agent in Walker v. United

States Postal Service, Agency No. CC-800-0359-03, EEOC No. 320-A2-8390X,

filed a class complaint alleging that he and others within the agency were

discriminated against on the basis of disability. The class complaint

was forwarded to the EEOC Denver District Office for a decision on

certification. On December 12, 2003, the EEOC Administrative Judge (AJ)

assigned to the case issued an Order directing the agency to "identify

all those pending complaints that raise the same issue as the Walker

class complaint" and to "issue a decision notifying [c]omplainants that

their complaints will be held in abeyance while awaiting the decision

to accept or reject the class complaint."

On August 29, 2005, the AJ in the Walker case certified the class as all

permanent rehabilitation employees whose duty hours have been restricted,

from January 1, 2000, to the present, allegedly in violation of the

Rehabilitation Act of 1973. The AJ noted that permanent rehabilitation

employee includes any rehabilitation program employee whose agency

employment records reflect an employee status code of LDC 69 and/or an

employee status code of RC and/or RD.<0>

ANALYSIS AND FINDING

Upon review, we find that the agency failed to show that complainant's

complaint falls within the parameters of the Walker class complaint.

As mentioned above, the certified Walker class consists of permanent

rehabilitation employees who had their duty hours restricted after

January 1, 2000. In the present case, complainant alleges that she

was improperly reassigned from a permanent rehabilitation position to

a full-duty position without medical restrictions. She also alleges

race and sex discrimination in addition to disability discrimination.

She does not raise a claim of a improper restriction of duty hours or

overtime as a permanent rehabilitation employee as the Walker class

complainants allege. Arguably. she cannot be part of the Walker class

because she was taken out of permanent rehabilitation status entirely.

Thus, we find that complainant's complaint does not fall within the

definition of the Walker class claim as it is currently defined.

Accordingly, the agency's final decision holding complainant's complaint

in abeyance is REVERSED and the individual complaint is REMANDED for

further processing in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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

(R0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

February 14, 2006

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations

0 1In her December 26, 2004

Statement on Appeal, complainant claims that the Office of Worker's

Compensation approved another surgery to treat one of the conditions for

which she received permanent rehabilitation status. She also stated that

she has developed tendinitis which her doctor explains is job related.

0 2The AJ additionally noted that due to the lack of discovery on the

merits of the case, the full scope of the term "duty hour restrictions"

is not known. However, the AJ noted that it was clear that two

specific types of restrictions have been identified by the class: (1)

restrictions limiting the number of hours generally worked; and (2)

duty hour restrictions which allegedly result in the denial of overtime.