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.