01985036_r
10-20-1999
Jana George, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jana George, )
Appellant, )
)
v. ) Appeal No. 01985036
) Agency No. 4E852020797
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
______________________________)
DECISION
On June 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 14, 1998, pertaining to
her complaint of unlawful employment discrimination in violation of �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts the appellant's appeal in accordance with EEOC
Order No. 960, as amended.
In her class complaint, appellant alleged that she was subjected to
discrimination on the basis of disability (physical) when she and other
"light" and "limited duty" employees were ordered (by management) to
work on the July 4, 1997 holiday.
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(e), for alleging to take a proposed personnel action.
Specifically, by adopting the Administrative Judge's recommended decision,
the agency found that the instant complaint concerns a proposed personnel
action rather than an injury suffered with respect to a term, condition or
benefit of employment since appellant and the other employees ultimately
did not have to work on July 4, 1997.
On appeal, as well as in her complaint, appellant acknowledges that she
and other "light" and "limited duty" employees actually did not work the
July 4, 1997 holiday; however, appellant notes that a �discriminatory
intent and behavior was [sic] exhibited regardless of the outcome."
In response, the agency notes that appellant failed to meet the
prerequisites (numerosity, commonality, typicality and adequacy of
representation) for class certification under 29 C.F.R. �1614.204(a)(2).
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory.
Appellant and the other "light" and "limited duty" employees, ultimately,
did not work the day in question and have shown no other issue regarding
tangible injury as a result of the agency's proposed personnel action.
Indeed, appellant has not shown that she and other "light" and "limited
duty" employees have suffered an injury with respect to a term, condition
or benefit of employment.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of appellant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 20, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations