Alanda Fernandez, et al., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 5, 2003
01A20516_r (E.E.O.C. Mar. 5, 2003)

01A20516_r

03-05-2003

Alanda Fernandez, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Alanda Fernandez, et al. v. United States Postal Service

01A20516

March 5, 2003

.

Alanda Fernandez, et al.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A20516

Agency No. CC-940-0127-01

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated September 6, 2001, dismissing the class complaint of

unlawful employment discrimination. In the complaint, the class alleged

that they were subjected to discrimination on the bases of disability

and age when:

On April 13, 2001, the Acting Postmaster held a meeting with all limited

duty personnel at the Palo Alto Post Office in which he threatened to

send limited duty employees home without pay if caught not working and

threatened to change the starting times and scheduled days off of all

limited duty employees.

On a continuing basis, the Palo Alto Post Office does not follow the

contract (collective bargaining agreement) relative to limited duty

employees.

The agency dismissed the complaint under various grounds pursuant to 29

C.F.R. � 1614.107(a).

Upon review, we find that the agency improperly dismissed the

class complaint. In the present case, the class has clearly alleged

discrimination on behalf of a proposed class of persons and has moved

for certification of the class. Before the class complaint can be

dismissed, the agency is obligated to refer the class complaint to an

EEOC Administrative Judge (AJ) for a determination as to whether the

class should be dismissed under 29 C.F.R. � 1614.107 or whether the

class complaint meets the prerequisites of a class complaint under 29

C.F.R. � 1614.204(a)(2).

Accordingly, the agency's decision dismissing the class complaint is

VACATED and we REMAND the class complaint to the agency for further

processing as directed in the Order below.

ORDER

The agency shall submit a copy of the complaint file to the EEOC District

Office within 30 calendar days of the date this decision becomes

final for assignment to an EEOC Administrative Judge for acceptance

or dismissal as provided by 29 C.F.R. � 1614.204(d). The Agency shall

provide written notification to the Compliance Officer at the address

set forth below that the complaint file has been transmitted to the EEOC

District Office. After receiving a decision from the EEOC Administrative

Judge, the agency shall take final action on the matter in accordance

with 29 C.F.R. � 1614.204(d)(7).

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 5, 2003

__________________

Date