0120141886
03-18-2016
Adalberto S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adalberto S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120141886
Hearing No. 560-2014-00094X
Agency No. 4J-630-0114-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated March 26, 2014, regarding Complainant's 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. The final order implemented an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ's) determination that Complainant, as class agent, failed to satisfy the prerequisites of a class complaint. The appeal is accepted, pursuant to 29 C.F.R. � 1614.201(e), to address whether the Agency has complied with its final order.
BACKGROUND
On October 5, 2012, Complainant filed a formal complaint that alleged that the Agency subjected him to discrimination on the basis of race (African-American) when, on July 26, 2012, racially offensive materials were posted in the work area. Complainant also requested class certification regarding his claim, and identified 36 putative class members.
In a decision dated February 12, 2014, an AJ found that Complainant's complaint did not meet the requirements of class certification as set forth in 29 C.F.R. � 1614.204. Consequently, the AJ dismissed Complainant's class complaint. The Agency's final order stated that it would fully implement the AJ's decision to not certify the putative class. The Agency's final order also notified Complainant that he could appeal the matter to the Commission.
Complainant filed an appeal, but does not contest the determination that the class should not be certified. Rather, Complainant requests that his individual complaint be processed and notes that the Agency failed to inform him if his complaint would be processed or dismissed as an individual complaint.
EEOC regulations require the Agency's final order to do more than simply implement or reject determinations on class certification. Specifically, 29 C.F.R. � 1614.204(d)(7) provides that if an agency issues a final order implementing the decision to dismiss a class complaint, the final order also must inform the class agent either that the complaint is being filed on that date as an individual complaint of discrimination and will be processed, or that the complaint is dismissed as an individual complaint in accordance with 29 C.F.R. � 1614.107. Accordingly, the Agency must notify Complainant if his individual complaint has been accepted for investigation or dismissed, in accordance with 29 C.F.R. � 1614.204(d)(7). See Malone v. U.S. Postal Serv., EEOC Appeal No. 01A50081 (Apr. 20, 2006) (Commission ordered Agency to notify complainant whether his individual complaint would be accepted for investigation or dismissed after AJ denied class certification). Therefore, we REMAND this matter to the Agency for further action in accordance with this decision, EEOC regulations, and the Order set forth below.
ORDER
To the extent that it has not already done so, the Agency shall undertake the following actions:
1. Within thirty (30) calendar days after the date this decision becomes final, in accordance with 29 C.F.R. � 1614.204(d)(7), the Agency shall accept, and thereafter investigate and process Complainant's class complaint as an individual complaint, pursuant to 29 C.F.R. � 1614.108 et seq., or dismiss the individual complaint in accordance with 29 C.F.R. � 1614.107 et seq. Simultaneously, the Agency shall issue to Complainant a letter notifying him whether it has accepted or dismissed his individual complaint.
2. Within thirty (30) calendar days after the date this decision becomes final, the Agency shall notify the members of the putative class identified by name in Complainant's EEO complaint of their right to contact an EEO Counselor and file complaints within 45 calendar days of their receipt of the Agency's notice.
3. The Agency is further directed to submit a Report of Compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall contain supporting documentation verifying that the corrective action has been implemented.
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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2016
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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