01A13172_r
06-03-2002
Robert G. Yost, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert G. Yost v. United States Postal Service
01A13172
June 3, 2002
.
Robert G. Yost,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13172
Agency No. 1G-771-0031-01
DECISION
The record reveals that in a formal EEO complaint dated January 9, 2001,
complainant claimed that he was discriminated against on the basis of
his disability (hearing-impaired) when on November 3, 2000, and on a
continuing basis, the agency instituted a computer and phone bidding
system and did away with manual written bids, but did not provide TTY/TDD
phone bidding.
In its decision dated March 26, 2001, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure to state
a claim. The agency determined that complainant failed to establish that
he suffered a personal loss or harm with regard to a term, condition,
or privilege of his employment as a result of the new bidding system.
The agency stated that complainant was not denied a bid during the
bid cycle in question as he has not bid on a job since June 1995.
According to the agency, a computer bidding system was implemented
that could be used by employees without a hearing disability, as well
as those who had a hearing impairment. The agency further stated that
since the instant complaint was filed, it has installed a TTY/TDD for
hearing-impaired employees.
On appeal, complainant contends that the instant complaint is a class
complaint on behalf of similarly injured parties. Complainant maintains
that the complaint also involves the agency's failure to provide training
for the hearing-impaired on the computer and telephone bidding system.
Complainant states that he was harmed by the agency's actions because he
did not have the ability to bid on a position in which he had a seniority
advantage over the individual selected for the position.
After reviewing the record, including complainant's statement on appeal
that the instant complaint is a class complaint, we find that this matter
should be treated as a class complaint. Therefore, we shall remand the
matter so that an EEOC Administrative Judge can determine whether to
accept or dismiss the class complaint pursuant to �1614.204(d).
Accordingly, the agency's dismissal of the instant complaint is VACATED.
This matter is hereby REMANDED for further processing as a class complaint
pursuant to the Order herein.
ORDER
The agency is ORDERED to take the following actions:
Within thirty calendar days of the date this decision becomes final, the
agency shall send a copy of the complaint file to the appropriate EEOC
District Office to request that an Administrative Judge be appointed
to determine if the identified class complaint should be accepted or
dismissed pursuant to 29 C.F.R. �1614.204(d).
Within thirty calendar days of the date this decision becomes final,
the agency shall notify complainant that the complaint file has been
transferred to the EEOC District Office for processing as a class
complaint under 29 C.F.R. �1614.204.
A copy the notice sent to complainant and a copy of the cover letter
sent to the Administrative Judge shall be sent to the Compliance Officer
as referenced herein.
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
June 3, 2002
__________________
Date