Chandler Glover, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01990912 (E.E.O.C. Jul. 17, 2000)

01990912

07-17-2000

Chandler Glover, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Chandler Glover v. United States Postal Service

01990912

July 17, 2000

Chandler Glover, )

Complainant, )

) Appeal No. 01990912

v. ) Agency No. 4E149993

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq. <1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405). Complainant alleged that he was discriminated

against on the bases of race (Black American) and physical disability

(Mild High Frequency Sensorinueral Hearing Loss) when on December 12,

1992, after being awarded a General Mechanic position, PS-05, pending

medical approval, the position was reverted.

The record reveals that during the relevant time, complainant was

awarded a general mechanic position pending medical approval at the

agency's Terminal Annex in Denver, Colorado. Believing he was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on December 8, 1995. At the conclusion of the

investigation, complainant was informed of his right to request a hearing

before an EEOC Administrative Judge (AJ) or alternatively, to receive

a final decision by the agency. After requesting a hearing before an

AJ, complainant withdrew his request for a hearing and requested that

the AJ remand his claim back to the agency for processing as a class

complaint.

By letter dated October 1, 1998, the AJ granted complainant's request

to cancel his hearing and to remand his complaint to the agency

for processing as part of a class complaint. From the AJ's remand

transmittal, the agency began processing the class complaint. However,

as to complainant's individual complaint, the agency issued a FAD without

a hearing, finding no discrimination. It is from this decision that

complainant now appeals. Complainant avers that the agency erred by

issuing a FAD without a hearing on his individual complainant.

Commission regulations provide that a complainant may move for class

certification at any reasonable point in the process when it becomes

apparent that there are class implications to the claim raised in an

individual complaint. 64 Fed. Reg. 37,644, 37658 (1999) (to be codified

as 29 C.F.R. �1614.204(b)). We find adequate support in the record for

complainant's contention that he withdrew his request for a hearing

on his individual complainant to pursue a potential class complaint.

Since complainant's individual complainant was filed on bases and issues

identical to the pending class complainant, complainant's individual

complaint should be subsumed within the class complaint pending some

determination by an AJ on the class complaint. EEOC Management Directive

110, Chapter 8, Section III(C). Furthermore, we remind the agency

that if the class complaint is dismissed, the agency is obligated to

acknowledge and process the individual complaints which were subsumed

into the class complaint. Id.

Therefore, we VACATE the agency's FAD and REMAND complainant's individual

complaint in accordance with the following order.

ORDER (E0400)

The individual complaint dismissed in the agency's December 8, 1995

decision shall be subsumed within the class complaint in accordance

with EEOC Management Directive 110, Chapter 8, Section III(C). Within 15

calendar days of the date this decision becomes final the agency shall

notify complainant that his complainant will be subsumed within the class

complaint. The agency shall provide a copy of the letter to complainant

(concerning the subsuming of their individual complaints into the class

complaint) to the Compliance Officer referenced herein and to the AJ

assigned to process the class complainant.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

July 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.