01985004_r
11-18-1999
Katie L. Hannigan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Katie L. Hannigan, )
Complainant, )
)
v. ) Appeal No. 01985004
) Agency No. 1-C-174-0072-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On June 10, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on May 15, 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.<1> In the complaint, she alleged that she was
subjected to discrimination on the bases of physical disability (carpal
tunnel syndrome) and retaliation (no prior EEO activity specified) when
on April 13, 1996, complainant was denied employment as a transitional
employee (TE) Data Conversion Operator at the York REC site.
The agency dismissed the complaint for raising an allegation pending in
federal district court.
The record includes a copy of pleadings from Knee v. United States Postal
Service, Civil Docket No. 4:98-CV-0527 (M.D. Pa. filed Mar. 31, 1998),
a class action in which five (5) class representatives, not including
complainant, allege, inter alia, that the agency illegally used medical
screening of applicants for Data Conversion Operator positions. Further,
the complaint identified the members of the potential class as applicants
for Data Conversion Operator positions for the York REC site who were
denied employment on the grounds of being �found medically unsuitable
for the position . . . .� (Complaint at 8). However, the record contains
no documentation regarding whether the District Court certified the
proposed class.
The agency must dismiss a complaint that is pending in a United
States District Court in which the complainant is a party.
See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at 29
C.F.R. �1614.107(a)(3)). Further, the filing of a civil action "shall
terminate Commission processing of the appeal." 64 Fed. Reg. 37644,
37659 (1999) (to be codified at 29 C.F.R. �1614.409).
The Commission has held that dismissal of a complaint for raising
matters pending in a district court class complaint is improper
when the court had not certified the matter as a class complaint.
See Phillips v. Department of Navy, EEOC Appeal No. 01966913 (Sept. 4,
1997) (finding that �because no class was certified, the complainant is
not bound by the court's rulings. . . .�). In the present case, the
agency submitted no proof that the District Court certified the class
in Knee, or that complainant was an individual party to the complaint.
The agency's dismissal is improper, absent proof that the District Court
took jurisdiction over the class complaint by certifying the class.<2>
CONCLUSION
Accordingly, the agency's dismissal is REVERSED and the complaint is
REMANDED for further processing in accordance with the order below.
ORDER (E)
The agency is ORDERED to process the remanded claims in accordance with 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �1614.108).
The agency shall acknowledge to complainant that it has received the
remanded claims within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (M1199)
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). 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).
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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
November 18, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ date
__________________________
clerk1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into affect, which 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.
2Complainant's inclusion in a certified class is governed by the Federal
Rules of Civil Procedure, which require that complainant request exclusion
from the class if she otherwise would be a party to the class action.
See Fed. R. Civ. P. 23(c). Even if the class was certified, dismissal
would be improper if the District Court allowed complainant to opt-out
of the class.