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Postal worker can’t sue on individual Rehab Act claim until administrative class suit exhausted

By Lorene D. Park, J.D.

Under EEOC regulations, because a postal worker’s Rehab Act claims were subsumed in an administrative class action challenging a national job assessment process for those with work-related-disabilities, the employee had not exhausted her remedies as to her individual claim and the Fifth Circuit affirmed its dismissal. She argued that her claim was distinct because it arose from the retraction of a job based on her non-work-related congenital hearing disability, but she was originally placed in the job due to the national process as applied to her work-related carpal tunnel syndrome, so she shared a common link with the class members who claimed to be negatively affected by the national process (Ruiz v. Brennan, March 16, 2017, Higginson, S.).

Removed from job under national program. The employee, who is hearing impaired, was hired by the Postal Service in 1990. In 1994 she was diagnosed with work-related carpal tunnel syndrome and was reassigned to a modified position to accommodate her limitations. In 2010, her assignment was reviewed as part of a National Reassessment Process (NRP), a program designed to standardize procedures for assigning work to injured postal workers. As part of the NRP, the employee was offered a different position at a front desk. She could accept or could provide updated medical information. She took the job, but due to her hearing impairment, she could not perform some tasks. After two days, the job offer was retracted. She was informed that under NRP guidelines, they could not identify a job she could perform.

Subsumed in administrative class action. The employee filed a disability discrimination complaint with the EEO division and the Postal Service determined that her individual claim was subsumed in a pending administrative class action, McConnell v. Potter, which alleged disability discrimination related to the NRP. She appealed this decision to the EEOC but it was affirmed.

The employee then filed suit against the Postmaster. A federal magistrate judge dismissed her claim, reasoning that she failed to exhaust her administrative remedies because neither the Postal Service nor the EEOC reached the merits of her claim.

EEOC regulations. Affirming, the Fifth Circuit explained that, pursuant to its statutory authority, the EEOC promulgated regulations governing administrative class actions. Under these, when an administrative class complaint meets four class-certification requirements under 29 C.F.R. §1614.204(a)(2), and a class action is pending, individual complaints alleging claims “identical to the class claim(s)” are subsumed within the class complaint. If a plaintiff’s claims are properly subsumed, she cannot meet the administrative exhaustion requirement on her individual claims while the class claim is pending.

Class definition here. The McConnell 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 Rehab Act. The EEOC also concluded that the class claims should be categorized into whether the NRP: (1) fails to provide a reasonable accommodation; (2) wrongfully discloses medical information; (3) creates a hostile work environment; and (4) has an adverse impact on disabled employees. The administrative judge had found that “the class agent had shown that the agency had a nationwide practice of targeting employees in rehabilitation or limited-duty positions, adversely affecting their reasonable accommodations via the NRP.”

Claim based on congenital disability subsumed. Here, the employee argued that she filed two distinct claims: (1) she was improperly removed from her modified duty position, and (2) her front-desk job was retracted due to a failure to accommodate her hearing impairment. She conceded the first fell within the scope of the McConnell class, but argued that the second was not identical to the class claims because it related to a congenital disability, not a work injury.

The appeals court disagreed. Even though the front desk job was allegedly retracted because of her hearing impairment and not her work-related disability, she satisfied the class definition because she was an employee placed in a modified position due to an injured-on-duty disability, who was subjected to the NRP between May 5, 2006 and the present, allegedly in violation of the Rehab Act. The NRP placed her in a position she could not perform and failed to provide her a reasonable accommodation thereafter, so she shared “the common link” with other class members asserting that they were negatively affected by the NRP.

The plain language of the employee’s amended complaint supported the conclusion that her claim was properly subsumed in the class action because she alleged: the “NRP didn’t provide reasonable accommodation to Plaintiff’s known physical limitations: carpal tunnel syndrome and hearing impairment.” She also alleged that the NRP withdrew the reasonable accommodation of the modified position and then put her at the front desk without accommodation.

For these reasons, and noting that the existence of a work-related disability was a necessary precondition to an employee being subjected to the NRP in the first place, the court found the employee’s claims properly subsumed and she had not exhausted her administrative remedies. The court rejected the employee’s argument that the presence of “right to sue” language in the EEOC’s decision meant she exhausted her administrative remedies. To the contrary, the inclusion of the language merely informed her of her right to litigate the EEOC’s decision to subsume her claims within the McConnell class.