01A11358_r
05-23-2001
James C. Latham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James C. Latham v. United States Postal Service
01A11358
May 23, 2001
.
James C. Latham,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11358
Agency No. CC 760-0271-00
DECISION
Upon review, we find that the agency improperly dismissed the class
complaint for failure to state a claim. The agency defined the complaint
as alleging harm on the bases of sex (male and female), age (over forty),
disability (job-related injuries), and in reprisal for prior EEO activity
when on June 2, 2000, during a meeting with an employee where the class
agent was the employee's union representative, the supervisor contacted
the employee's medical provider without her authorization.
Within 30 days of an agency's receipt of a class complaint, the
agency must forward the complaint to the Commission for assignment
to an Administrative Judge (AJ). See 29 C.F.R. � 1614.204(d)(1).
The agency does not have the authority to accept or dismiss a class
complaint at this stage. The AJ, however, may dismiss the complaint
for any of the reasons listed in � 1614.107 or because it does not
meet the prerequisites of a class complaint under � 1614.204(a)(2).
29 C.F.R. � 1614.204(d)(2). In the instant case, the agency did not send
the complaint to the Commission for assignment to an AJ, but instead,
dismissed the complaint. Therefore, the agency's November 27, 2000
decision was premature. Due to the disposition of this matter, the
Commission does not address whether the complaint states a claim.
The proper course, following assignment of the complaint to the AJ,
is for the AJ to transmit his or her decision to accept or dismiss a
complaint to the agency and the class agent. 29 C.F.R. � 1614.204(d)(7).
The agency shall then take final action by issuing a final order within
40 days of receipt of the hearing record and the AJ's decision. Id.
Accordingly, the agency's decision to dismiss the complaint is REVERSED.
The complaint is REMANDED for further processing in accordance with the
Order below.
ORDER
The agency is ORDERED to take the following actions:
(1) Within 15 calendar days of the date this decision becomes final,
contact the relevant EEOC District Office in writing to schedule a
hearing on the remanded claims.
Send a copy of the letter referenced in provision 1 of this Order to
the class agent and to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
May 23, 2001
__________________
Date