James C. Latham, et al., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 24, 2003
01a24841_r (E.E.O.C. Feb. 24, 2003)

01a24841_r

02-24-2003

James C. Latham, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James C. Latham, et al. v. United States Postal Service

01A24841

February 24, 2003

.

James C. Latham, et al.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24841

Agency No. CC-760-0068-00

Hearing No. 310-A1-5123X

DECISION

The record indicates that complainant filed a class complaint, dated

January 5, 2000, alleging discrimination based on age (47), disability

(various), and in reprisal for prior EEO activities when on December

8, 1999, the Amarillo Postmaster requested that an Injury Compensation

Manager come to Amarillo to review injured employees' files. On February

5, 2001, an EEOC Administrative Judge (AJ) determined that the subject

class complaint failed to meet the requisite elements of a class complaint

pursuant to 29 C.F.R. � 1614.204(a)(2). On April 27, 2001, the agency

issued its final action fully implementing the AJ's decision. Therein,

the agency also dismissed the complaint as an individual complaint for

failure to state a claim pursuant to 29 C.F.R. �� 1614.107(a)(1).

The Commission finds that the class complaint and the individual

complaint are properly dismissed for failure to state a claim. EEOC

Regulation 29 C.F.R. � 1614.107(a)(1) provides, in part, that prior to

a request for a hearing in a case, the agency shall dismiss an entire

complaint that fails to state a claim under � 1614.103 or � 1614.106(a).

In order to establish standing initially under 29 C.F.R. � 1614.103,

a complainant must be either an employee or an applicant for employment

of the agency against which the claims of discrimination are raised.

In addition, the claims must concern an employment policy or practice

which affects the individual in his/her capacity as an employee or

applicant for employment. The agency shall accept a complaint from

any aggrieved employee or applicant for employment who believes that

he/she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age, or disability. 29 C.F.R. ��

1614.103 and .106(a). The Commission's Federal sector case precedent has

long defined an �aggrieved employee� as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

The Commission finds that the alleged matter in the class and

individual complaint concerns the agency's processing of workers'

compensation claims, and does not relate to any employment policy or

practice of the agency. See Stone v. Department of Labor, EEOC Appeal

No. 01950550 (February 6, 1996); Montage v. Department of Labor, EEOC

Appeal No. 01952118 (May 18, 1995). Even if the claim in the class and

individual complaint does relate to a term, condition, or privilege of

employment, both the class and complainant have failed to show they were

harmed by the agency's alleged actions. Thus, the Commission finds that

the class complaint and the individual complaint are properly dismissed

for failure to state a claim.

Accordingly, the agency's final action dismissing the class complaint

and the individual complaint is AFFIRMED.

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 (S0900)

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. If you

file a request to reconsider and also file a civil action, 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

February 24, 2003

__________________

Date