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