01911138
02-13-1992
Appellant, v. Anthony M. Frank, Postmaster General, United States Postal Service, (Eastern Region), Agency.
Thomas C. Roos, Appellant,
v.
Anthony M. Frank, Postmaster General, United States Postal Service, (Eastern Region), Agency.
Request No. 05920101
Appeal No. 01911138
Agency No. 2-N-1037-90
DECISION ON REQUEST TO REOPEN
INTRODUCTION
On October 24, 1991, the United States Postal Service (hereinafter referred to as the agency) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Thomas C. Roos v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01911138 (September 24, 1991). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). The agency bases its request on 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy). For the reasons set forth herein, the Commission finds, in its discretion, that a reopening is warranted pursuant to 29 C.F.R. 1613.235(a).
ISSUE PRESENTED
The issue presented herein is whether the Commission's previous decision properly vacated the agency's decision to reject appellant's complaint on the grounds that it failed to state a claim and also because appellant was a member in a pending class complaint involving the same allegations, and properly remanded appellant's complaint to the agency for further processing.
BACKGROUND
On July 11, 1990, appellant filed a formal EEO complaint which alleged that he had been subjected to discrimination because of his handicap (physical) when he was given a modified job offer on May 14, 1990, which changed his work station, duty hours, and scheduled days off. When appellant refused the offer, he was placed on leave without pay (LWOP) effective June 8, 1990. On December 19, 1990, the agency issued its final decision rejecting appellant's complaint. The agency found that appellant's complaint failed to state a claim because appellant did not meet the criteria to be considered a handicapped individual. Further, the agency stated that appellant was a member of a class complaint filed on August 21, 1990, which alleged the same matter as his present complaint and, therefore, appellant's complaint was also rejected for raising an identical claim that was presently pending before the agency.1 Accordingly, appellant initiated a timely appeal to the Commission.
In its previous decision of September 24, 1991, the Commission found that the agency's rejection of appellant's complaint for failing to state a claim was improper. The Commission noted that the determination of whether appellant was handicapped was a question to be resolved on the merits of his complaint and was improperly used as a procedural bar to the processing of his complaint. The Commission also found the agency's rejection of appellant's individual complaint for stating the same claim as a pending class complaint to be improper. The Commission found that a class complaint must be certified before it can be determined that an individual complaint raises the same matter as the class complaint. Further the Commission noted that a complainant may opt to process an individual complaint during the pendency of the decision to accept or reject the class complaint. Since the class complaint filed on July 6, 1990, was still pending certification, the Commission found that appellant could continue to have his individual complaint processed. Accordingly, the Commission remanded appellant's complaint to the agency for further processing.
In its request to reopen, the agency contends that the Commission's previous decision constituted an erroneous interpretation of law or regulation, and a misapplication of established policy. Specifically, the agency identifies three other appellate decisions of the Commission involving three other potential members of the same class as appellant in the present case, wherein the Commission remanded the rejected individual complaints to the agency for issuance of new final decisions dismissing the complaints without prejudice pending certification of the class complaint. The cases identified are Linda Murphy v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01911084 (April 12, 1991); Janet Ann Jeffries v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01911400 (April 17, 1991); and Stephen Thomas v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01911085 (April 12, 1991). Further, the agency identifies another appellate decision involving another potential class member wherein the Commission remanded the individual complaint for further processing, the same as the case herein: namely, Juliann L. Wilhelm v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01911174 (June 3, 1991).2 Accordingly, the agency requests guidance in how to proceed with regard to the individual complaints in view of the Commission's conflicting decisions.
In response, appellant contends that the agency is needlessly delaying the processing of his case. Appellant requests that the Commission assume responsibility for the processing of his complaint.
ANALYSIS AND FINDINGS
When a complainant, who is a potential member of a class action files an individual complaint, at or around the same time that a class complaint is filed, the agency must determine whether the issue in the individual complaint is identical to that which is presented in the class complaint. If the agency determines that the issues in the individual and class complaints are identical, then the agency should issue a decision notifying the complainant that his/her individual complaint will be held in abeyance during the pendency of the decision to accept or reject the class complaint. This action is necessary to avoid the duplication of administrative resources. The agency decision shall notify the complainant of his/her right to appeal the abeyance determination to the Commission. If however, the issues are not found to be identical, then the individual complaint should continue to be processed. The Commission hereby reverses the decision in EEOC Appeal 01911138 to the extent that it is inconsistent with current policy by stating that the identical nature of the allegations raised in an individual and in a class complaint cannot be determined prior to certification of the class.
In the present case, the agency found that appellant's complaint raised the identical issue as that which was raised in the class complaint, which was pending certification. The agency, however rather than deciding to hold appellant's complaint in abeyance, rejected the complaint. The Commission finds that its previous decision correctly determined that the agency's rejection of appellant's complaint was improper; however, the Commission finds that the subsequent remand of appellant's complaint for further processing was incorrect. As stated above, once the agency found that the issue in appellant's complaint was identical to that which was raised in the class complaint pending certification, the agency should have issued a decision notifying appellant that his complaint would be held in abeyance while awaiting the decision to accept or reject the class complaint. The Commission finds that to now remand the present case to the agency to issue an abeyance decision would be redundant and unnecessary since the agency has already determined that the issues are identical. Therefore, we will now review the propriety of holding appellant's complaint in abeyance.
Appellant's complaint alleged that he was subjected to discrimination because of his handicap (physical) when he was given a modified job offer, which changed his work location and duty hours. The identified class complaint alleged that the agency discriminated against handicapped employees on limited duty through its policy of giving them a choice between a modified job offer, which changed their work locations and duty hours, or taking leave without pay. The Commission finds that the complaints do raise identical issues, therefore, requiring that appellant's individual complaint be held in abeyance pending a final decision whether to accept or reject the class complaint.
Accordingly, the Commission hereby remands appellant's complaint to the agency to hold in abeyance pending an acceptance decision on the class complaint. If the class complaint is rejected, the processing of appellant's individual complaint will be resumed. If the class complaint is accepted, appellant may choose to have his individual complaint subsumed into the class complaint or he may elect to consolidate his complaint with that of the class, however, remaining as a separately named complainant.3 If the class ultimately prevails on the merits, appellant's individual claim will be extinguished under the principles of res judicata, so long as the class action resolved the individual claim as well as the common class claims. See Samuel C. Martinez v. Dick Thornburgh, Attorney General, Department of Justice, EEOC Request No. 05900254 (May 25, 1990). If the final decision on the merits of the class action does not resolve appellant's individual claim, he may renew his individual claim. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984).
CONCLUSION
After a review of the agency's request to reopen, appellant's response thereto, the previous decision, and the entire record, and on its own motion, the Commission hereby reopens the decision in EEOC Appeal No. 01911138 (September 24, 1991), and that decision is hereby MODIFIED. The agency's decision remains vacated. Appellant's complaint is hereby remanded to be held in abeyance in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to hold appellant's complaint of handicap discrimination in abeyance during the pendency of the decision to accept or reject the class complaint. When the final decision on the class complaint is issued, the agency shall notify appellant of the decision. If the class complaint is rejected, the agency shall notify appellant that he has thirty (30) calendar days from the date of receipt of the notice within which to notify the agency to resume processing of his individual complaint. If the class complaint is accepted, the agency shall notify appellant of the actions which he can take in accordance with the decision herein. A copy of the notice must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0391)
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 appellant.
RIGHT TO FILE A CIVIL ACTION (R0391)
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: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; 29 C.F.R. 1613.281. You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is filed. 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. '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 (Z0391)
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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.
FOR THE COMMISSION:
Frances M. Hart
Executive Officer
Executive Secretariat
February 13, 1992
Footnotes
1. We note that the class complaint was actually filed on July 6, 1990, as indicated in the record regarding the class certification. See Barbara A. Martin v. Anthony M. Frank. Postmaster General, United States Postal Service, (Headquarters), EEOC Request No. 05920003 (December 19, 1991) (remanding case for a supplemental investigation).
2
2. The agency also filed requests to reopen these identified appellate decisions. On November 20, 1991, the Commission issued its decisions on the agency's requests modifying the previous decisions to obtain consistent results.
3
3. The Commission recognizes that appellant has the option to withdraw his individual complaint at any time, and after acceptance of the class complaint may also opt out of the class action, pursuant to 29 C.F.R. 1613.605.