Robert H. Vunder, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A23564 (E.E.O.C. Oct. 27, 2003)

01A23564

10-27-2003

Robert H. Vunder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert H. Vunder v. United States Postal Service

01A23564

October 27, 2003

.

Robert H. Vunder,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A23564

Agency Nos. HO-132-95; HO-169-95; HO-0048-96;

HO-0151-94(A-T); HO-150-95; HO-0133-95

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 24, 2002, finding no discrimination regarding the

captioned complaints. The Commission accepts the appeal pursuant to 29

C.F.R. � 1614.405.

According to the record, complainant filed the captioned complaints

under Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. , Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. , and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. In his complaints, complainant alleged that he

was subjected to discrimination on the bases of national origin (Danish

American), disability (depression/emotional distress/stress and trauma),

age (D.O.B. 09/20/54), and reprisal for prior EEO activity when he was

not selected for approximately 25 Postal Career Executive Positions

nationwide and at Postal headquarters beginning in December 1992.

The agency issued a decision finding no discrimination on any of the

bases alleged for complainant's non-selection claims and noted that

while complainant characterized a great number of the selectees as being

unqualified for the positions to which they were promoted, he provided

little or no evidence to substantiate his claims.

A review of Commission records reveal however, that in Vunder, Et

Al. v. United States Postal Service, EEOC Appeal No. 01A03892 (September

18, 2002), the Commission vacated the agency's decision denying class

certification and remanded the class and captioned individual complaints

for further processing as there was insufficient evidence in the record

to support a dismissal of complainant's class complaints. As such,

the captioned individual complaints must be subsumed within the request

for class certification. See EEOC Management Directive 110, Chapter 8,

Section III(C), (November 1999).

Accordingly, the agency decision is hereby VACATED, and the agency

is ordered to merge the captioned individual complaints with the class

action. The complaints are remanded for further processing in accordance

with this decision and applicable regulations.

ORDER (E0900)

The agency is ORDERED to take the following actions:

1. The agency shall merge the captioned individual complaints with the

class action complaint as discussed in this decision.

2. Within fifteen (15) fifteen calendar days of the date this decision

become final, the agency shall issue a Notice advising complainant that

the instant complaints are being merged with the class action complaint.

The agency must sent a copy of the aforementioned Notice to the

Commission's Compliance Officer as set forth below.

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

October 27, 2003

__________________

Date