0120073649
01-06-2012
Gerard A. Hill, et al., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Gerard A. Hill, et al.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120073649
Hearing No. 520-2007-00356X
Agency No. 4A-117-0037-07
DISMISSAL OF APPEAL
Complainant, as Class Agent, filed an appeal with this Commission from an
Agency final decision regarding his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §�
�621 et seq. Pursuant to 29 C.F.R. § 1614.409, the appeal is DISMISSED.
At the time of the events giving rise to this complaint, Complainant
worked as a Letter Carrier at the Agency’s Smithtown Post Office in
Smithtown, New York. On April 5, 2007, Complainant, as Class Agent,
filed an EEO complaint alleging that the Agency discriminated against
him and other Agency employees on the basis of age (over 40) when:
1. Management used intimidation, harassment, threats, and bullying to
either separate, terminate, or force the resignation of senior employees;
2. Management treated the class action group with no dignity, respect,
and fairness;
3. Management withheld employees pay without just cause;
4. Management gave excessive quantity and unwarranted disciplinary action;
5. Management used verbal threats towards employees;
6. Management gave conflicting instructions to create opportunity for
more discipline;
7. Management showed total disregard of contractual rights with an
attitude of “Grieve it if you don’t like it;”
8. Management was overstaffed in order to implement its extreme managerial
style;
9. Management searched and seized employee’s personal affects on the
street in view of patrons; and
10. Management created an extremely hostile work environment and failed
to provide a safe and harmonious place to work for employees.
The Agency referred Complainant’s class complaint to an AJ. On June
20, 2007, the AJ issued a decision denying class certification. In her
decision, the AJ found that Complainant failed to establish “the
class complaint prerequisites of commonality, typicality, numerosity,
and adequate representation.” The AJ ordered the Agency to process
the complaint as an individual complaint of discrimination and inform
Complainant of his appeal rights. On July 2, 2007, the Agency issued
its final order fully adopting the AJ’s decision. On July 25, 2007,
Complainant filed an appeal of the Agency’s July 2, 2007, final order
with the Commission.
On October 30, 2008, a civil action was filed by James Sweeney
(identified as Civil Action No. 2:08-cv-04417-ARL) in the United States
District Court for the Eastern District of New York. Other plaintiffs,
including Complainant, later consented to join the lawsuit. The record
discloses that the claims raised therein are the same as those raised
in the instant complaint.
The Commission’s regulation found at 29 C.F.R. § 1614.409 provides
that the filing of a civil action “shall terminate Commission processing
of the appeal.” Commission regulations mandate dismissal of the
EEO complaint under these circumstances so as to prevent a Complainant
from simultaneously pursuing both administrative and judicial remedies
on the same matters, wasting resources, and creating the potential
for inconsistent or conflicting decisions, and in order to grant due
deference to the authority of the federal district court. See Stromgren
v. Dep’t of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990);
Sandy v. Dep’t of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989);
Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988).
Accordingly, Complainant’s appeal is hereby DISMISSED. See 29
C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 6, 2012
Date
2
0120073649
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120073649