01A20516_r
03-05-2003
Alanda Fernandez, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alanda Fernandez, et al. v. United States Postal Service
01A20516
March 5, 2003
.
Alanda Fernandez, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20516
Agency No. CC-940-0127-01
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 6, 2001, dismissing the class complaint of
unlawful employment discrimination. In the complaint, the class alleged
that they were subjected to discrimination on the bases of disability
and age when:
On April 13, 2001, the Acting Postmaster held a meeting with all limited
duty personnel at the Palo Alto Post Office in which he threatened to
send limited duty employees home without pay if caught not working and
threatened to change the starting times and scheduled days off of all
limited duty employees.
On a continuing basis, the Palo Alto Post Office does not follow the
contract (collective bargaining agreement) relative to limited duty
employees.
The agency dismissed the complaint under various grounds pursuant to 29
C.F.R. � 1614.107(a).
Upon review, we find that the agency improperly dismissed the
class complaint. In the present case, the class has clearly alleged
discrimination on behalf of a proposed class of persons and has moved
for certification of the class. Before the class complaint can be
dismissed, the agency is obligated to refer the class complaint to an
EEOC Administrative Judge (AJ) for a determination as to whether the
class should be dismissed under 29 C.F.R. � 1614.107 or whether the
class complaint meets the prerequisites of a class complaint under 29
C.F.R. � 1614.204(a)(2).
Accordingly, the agency's decision dismissing the class complaint is
VACATED and we REMAND the class complaint to the agency for further
processing as directed in the Order below.
ORDER
The agency shall submit a copy of the complaint file to the EEOC District
Office within 30 calendar days of the date this decision becomes
final for assignment to an EEOC Administrative Judge for acceptance
or dismissal as provided by 29 C.F.R. � 1614.204(d). The Agency shall
provide written notification to the Compliance Officer at the address
set forth below that the complaint file has been transmitted to the EEOC
District Office. After receiving a decision from the EEOC Administrative
Judge, the agency shall take final action on the matter in accordance
with 29 C.F.R. � 1614.204(d)(7).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
March 5, 2003
__________________
Date