01a13621_r
09-24-2002
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
01A13621
September 24, 2002
.
James C. Latham, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13621
Agency No. CC-760-0150-00
Hearing No. 310-A1-5126X
DECISION
The record indicates that complainant filed a class complaint, dated April
30, 2000, alleging discrimination based on sex (male), age (over 40),
disability (injured on duty employees), and in reprisal for prior EEO
activities when on February 25, 2000, he became aware that the agency
failed to protect its employees by not enforcing the Zero Tolerance
Policy in relation to the conduct of an Acting Supervisor. On February
5, 2001, an EEOC Administrative Judge (AJ), in Hearing No. 310-A1-5126X,
found that the class complaint failed to meet the requisite elements
of a class complaint pursuant to 29 C.F.R. � 1614.204(a)(2). The AJ
also determined that the class complaint stated the same claim that
had been previously decided by her, under Hearing No. 310-A1-5125X
(Agency No. CC-760-0128-00). On April 27, 2001, the agency issued its
final action fully implementing the AJ's decision concerning the class
complaint and dismissing the individual complaint for stating the same
claim that had been previously decided by the agency, pursuant to 29
C.F.R. � 1614.107(a)(1).
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 states the same claim that is pending before or
has been decided by the agency or Commission. The record indicates that
complainant previously filed a class complaint, Agency No. CC-760-0128-00,
and an individual complaint, Agency No. 4G-760-0426-01, alleging the
same claim as the instant class complaint and the instant individual
complaint. The record also indicates that the previous class complaint,
Agency No. CC-760-0128-00, and the previous individual complaint, Agency
No. 4G-760-0426-01, were the subject of an agency decision dated May 25,
2001. Therefore, the Commission finds that the instant class complaint
and the instant individual complaint were properly dismissed pursuant to �
1614.107(a)(1) for stating the same matter as raised in a prior complaint.
Accordingly, the agency's final action is hereby AFFIRMED.<1>
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
September 24, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Because of our disposition, we need not discuss the agency's alternative
dismissal of the class complaint for failure to meet the requisite
elements of a class complaint.