0520160510
11-18-2016
Iris D.,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
Iris D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520160510
Appeal No. 0120150533
Hearing No. 471-2013-00044X
Agency No. 1J483004212
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120150533 (August 4, 2016). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Detroit Priority Mail Center (PMC) in Michigan. The PMC and the Detroit Processing and Distribution Center were part of the Detroit Bid Cluster.
In 2012, the Agency decided to close the PMC and transfer the priority mail operation to the Detroit Network Distribution Center (NDC). As a result, junior PMC employees were slated to involuntarily transfer to the NDC unless more senior PMC employees volunteered to transfer in lieu of the more junior employees. This voluntary transfer option was known as the "senior option," and was offered to both Mail Handlers and Clerks. However, the result of an employee exercising the senior option was different depending on that employee's craft. Senior Mail Handlers who voluntarily transferred lost some of their seniority, while Clerks did not. Complainant volunteered to transfer to the NDC under the senior option and lost some of her seniority.
On January 3, 2013, Complainant filed a class complaint alleging discrimination by the Agency against the approximately 40 Mail Handlers from the PMC on the basis of age (at least 40) when it told them that their seniority would be reduced if they voluntarily transferred to the NDC under the senior option. Subsequently, Complainant added the additional bases of race (non-Caucasian) and disability (any individual with a hearing impairment) to her claim.
On October 15, 2014, an Equal Employment Opportunity Commission Administrative Judge (AJ) issued a decision dismissing the class complaint. First, the AJ dismissed the class complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The AJ found that Complainant's allegation was a generalized grievance that employees in one unit or job category (Mail Handlers) were not granted the same employment benefits as compared to other employees in another unit or job category (Clerks). Second, the AJ dismissed the class complaint for not meeting the prerequisites for class certification detailed in 29 C.F.R. � 1614.204(a)(2).
The Agency issued a final order implementing the AJ's decision to dismiss the class complaint and informing Complainant that her individual complaint was also dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Our previous decision found that the class complaint was improperly dismissed for failure to state a claim. The decision found that a fair reading of the record indicated that Complainant was alleging that the Agency treated the Mail Handlers less favorably than the Clerks, not because of their Mail Handler status, but because of their age, race, and disability status.
The previous decision noted that there was limited information in the record relevant to the issue of certification and remanded the class complaint back to the AJ to allow for further discovery so that Complainant and the Agency could submit additional information relevant to the issue of certification. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 8, � IV.B (Aug. 5, 2015).
In its request for reconsideration, the Agency expresses its disagreement with the previous decision, and makes arguments it has previously raised. The Agency states that the class complaint cannot survive, that it involves a generalized grievance, that the relevant comparators are not similarly situated, and that the putative class can never be certified. The Agency also questions the qualifications of Complainant to serve as class agent, as well as challenges whether the class will be sufficiently numerous.
The concerns raised by the Agency in its request for reconsideration were already considered by the Commission in its initial decision. As noted above, this matter was remanded for further discovery because of the lack of information in the record. Only then may the concerns of the Agency be addressed. On remand and after further discovery, it is up to the AJ to issue another decision on whether or not the complaint meets the requirements for class certification.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120150533 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency shall take the following action:
1. Within 30 calendar days from the date this decision becomes final, the Agency shall forward the entire record to the Hearings Unit of the Detroit Field Office. In its transmittal letter, the Agency shall request that an AJ be assigned for the purpose of undertaking additional discovery to obtain information currently absent from the record including, but not limited to, the composition (age, race, and disability status) of the Mail Handlers versus the Clerks from the PMC during the relevant time period. The transmittal letter will also request that the AJ render a decision on the issue of class certification, pursuant to 29 C.F.R. � 1614.204, upon completion of this discovery phase.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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.
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
November 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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