01A43340_r
06-02-2004
George McKeighan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George McKeighan v. United States Postal Service
01A43340
June 2, 2004
.
George McKeighan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43340
Agency No. 4-J-481-0064-03
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 11, 2004. The record reveals that a
class complaint was filed in the case of Edmond Walker v. United States
Postal Service, and was forwarded to an EEOC Administrative Judge (AJ)
for a certification decision. On December 12, 2003, prior to issuing a
decision on certification, the EEOC AJ ordered the agency to identify
all pending complaints that raised the same issue as the Walker class
complaint and issue a decision notifying those complainants that their
cases will be held in abeyance while awaiting the certification decision
in Walker. Thereafter, the agency determined that the present complaint
involved the same claims raised in the Walker class complaint and issued
a March 11, 2004 decision holding the present case in abeyance pending
the AJ's decision regarding the certification of Walker. On April 8,
2004, complainant filed the present appeal stating that he does not
want his case stayed because of the Walker class complaint and noted
that even if Walker is certified he does not want to be a part of that
class and will opt out.
Upon review, we find that the Commission's regulations do not allow
for an appeal from an agency decision to hold an individual complaint in
abeyance. An individual complaint that comes within the definition of the
claims of a class complaint should not be dismissed but should be subsumed
within the class complaint. Equal Employment Opportunity Management
Directive For 29 C.F.R. Part 1614 (EEO MD-110), Ch. 8, Sec. III(C)
(Nov. 9, 1999). We note that in the present case complainant does not
challenge the agency's assertion that his complaint comes within the
definition of the Walker class complaint. Further, we note that EEO
MD-110 provides that �class members may not �opt out' of the defined
class; however, they do not have to participate in the class or file a
claim for individual relief.� EEO MD-110, Ch. 8, Sec. V(C).
Accordingly, the present appeal is DISMISSED.
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
June 2, 2004
__________________
Date