Update: EEO Class Action For Postal Employees Placed Under National Reassessment Process
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to
employees who had an approved compensable injury as determined by the Department of Labor.
According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
Class members argued one or more of the following complaints:
1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination.
The Postal Service filed an appeal from the certification decision.
Recently EEOC agreed with the AJ’s determination that the class should be defined as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP since 2006. Therefore, the EEOC reversed the Postal Service’s order rejecting the class and ordered them to notify potential class members.
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EEOC Proposes Broader Definition of Disability
The Equal Employment Opportunity Commission (EEOC) issued a Federal Register Notice proposing to revise its Americans with Disability Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008, Pub. L. No. 110?325. Comments on the proposed regulations, 74 Fed. Reg. 48431-48450, are due no later than November 23, 2009. The EEOC described the nature of the revised regulations as follows:
Pursuant to the 2008 amendments, the definition of disability under the ADA, 42 U.S.C. 12101, et seq., shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA as amended, and the determination of whether an individual has a disability should not demand extensive analysis. The Amendments Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. . . . .
The Amendments Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways, therefore necessitating revision of the existing regulations and interpretive guidance contained in the accompanying “Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act,” which are published at 29 CFR part 1630.
Consistent with the provisions of the Amendments Act and Congress’s expressed expectation therein, the proposed rule:
—Provides that the definition of “disability” shall be interpreted broadly;
—Revises that portion of the regulations defining the term “substantially limits” as directed in the Amendments Act by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and by deleting reference to the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s clear instruction that “substantially limits” is not to be misconstrued to require the “level of limitation, and the intensity of focus” applied by the Supreme Court in Toyota Motor Mfg., Ky v. Williams, 534 U.S. 134 [sic: correct citation is 534 U.S. 184] (2002) (2008 Senate Managers’ Statement at 6);
—Expands the definition of “major life activities” through two nonexhaustive lists:
—The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the Amendments Act;
—The second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the Amendments Act, and some of which have been added by the Commission as further illustrative examples;
—Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
—Provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
—Provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor;
—The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment, and the Commission invites public comment on this point;
—Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and,
—Provides that qualification standards,employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.
EEOC 2009 Annual Report On USPS Workforce
From United States Equal Employment Opportunity Commission (EEOC):
“This report covers the period from October 1, 2007, through September 30, 2008. The September 30 snapshot includes only employees in pay status thus, some permanent employees, like seasonal employees or those on active military tours of duty are not included….. while the United States Postal Service constituted 27.6% of the work force, it accounted for 47.1% of all EEO counselings, 36.6% of all complaints filed, 36.9% of all completed investigations and 40.8% of all complaints closed in FY 2008.”
Among the cabinet/large (15,000 or more employees) agencies, in FY 2008, the USPS reported the highest percentage (2.2%) of its work force that completed counseling, while the government-wide average was 1.2%
In FY 2008, the U.S. Postal Service again had the highest ADR participation rate in the pre-complaint process (74.1%) among the cabinet/large agencies, while the government-wide average was 49.5%.
The US Postal Service timely completed 99.5% of its 4,113 investigations in FY 2008.
In FY 2008, the U. S. Postal Service reported the second highest percentage (95.9%) of timely issued merit decisions without an Administrative Judge of agencies with 15,000 or more employees.
Targeted Disabilities
As of September 30, 2008, USPS employed 5,479 (0.83%) Individuals with Targeted Disabilities (IWTD). In order to have met the federal 2% participation rate goal, 15,259 IWTD were needed. This represented a decrease of 266 employees over FY 2007 and a decrease of 858 employees since FY 2004. The participation rate for FY 2007 was 0.84% and for FY 2004 was 0.9%. Over the 5-year period USPS had a net decrease of 0.07% in employees with targeted disabilities.
Costs
USPS agreed to pay $703,467 for 5,504 pre-complaint settlements, of which 456 were monetary settlements averaging $1,542. USPS expended a total of $6,175,445 for 4,113 complaint investigations, for an average expenditure of $1,501.
USPS agreed to pay a total of $5,777,740 plus other benefits for 669 complaint closures through settlement agreements, final agency decisions, and final agency orders fully implementing AJ decisions. For the 443 complaint closures with monetary benefits, the average award was $13,042.