01a24839_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
01A24839
February 24, 2003
.
James C. Latham, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24839
Agency No. CC-760-0220-00
Hearing No. 310-A1-5130X
DECISION
The record indicates that complainant, as an agent for the class members,
filed a class complaint, dated May 31, 2000. In its final action dated
April 27, 2001, the agency identified complainant's claim as alleging
discrimination based on sex (male), age (48), disability (left foot),
and in reprisal for prior EEO activities when on an unspecified date,
an identified EEO Counselor/Investigator coerced a terminated employee to
withdraw his EEO complaint. Complainant has not challenged the agency's
framing of the complaint. On February 5, 2001, an EEOC Administrative
Judge (AJ) issued her decision finding that the 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 alleged claim as an individual complaint for failure to
state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission notes that although the agency dismissed the class
complaint for failure to meet the requisite elements of a class
complaint, it is more properly dismissed for failure to state a claim
and for alleging dissatisfaction with the processing of a previously
filed complaint. 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). EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an
agency shall dismiss a complaint that alleges dissatisfaction with the
processing of a previously filed complaint.
The instant complaint involves the agency's processing of a former
employee's EEO complaint, which had been withdrawn by that employee,
and did not involve complainant or the processing of his complaint. The
Commission finds that there is no harm from the agency's alleged action
which should be processed as an independent claim of discrimination.
Improper processing claims should be raised during the processing
of the underlying matter. Therefore, we find that the instant class
complaint and individual complaint are properly dismissed for failure
to state a claim and for alleging dissatisfaction with the processing
of a previously filed complaint pursuant to � 1614.107(a)(1) and �
1614.107(a)(8), respectively.
Accordingly, the agency's final action dismissing the class and 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