01A01516
08-14-2002
Pamela A. Grigsby, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela A. Grigsby, et al. v. United States Postal Service
01A01516
August 14, 2002
.
Pamela A. Grigsby, et al.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01516
Agency Nos. CC 326-0021-98, CC 326-0006-99
Hearing Nos. 150-99-8758X, 150-99-8759X
DECISION
Complainant, as class agent, timely initiated this appeal from the
agency's final order fully implementing the decision of an EEOC
Administrative Judge (AJ) to deny class certification of two equal
employment opportunity (EEO) class complaints of unlawful employment
discrimination. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
In the class complaints, complainant alleged that the agency was
retaliating against a class of individuals who had participated in the
EEO process, or had opposed unlawful discrimination in the workplace,
when (1) management in Mail Processing and Customer Service hand-picked
employees for detail assignments without posting the assignment to the
senior employee,<1> and (2) on September 19, 1998, the Plant Manager
demanded off day overtime on six out of nine Saturdays.
The agency forwarded complainant's class claims to an EEOC Administrative
Judge (AJ) to determine whether the matter warranted certification as
a class action. The AJ decide not to grant certification of the class
action, because complainant �allege[d] retaliation/reprisal discrimination
and thus fail[ed] to state a claim under 29 C.F.R. part 1614, as reprisal
discrimination is not within the purview of the Commission's regulations
on class complaints.� The AJ made no further inquiry into whether class
certification was appropriate under the Commission's regulations, and
the agency subsequently entered a final decision adopting in full the
AJ's decision.
We disagree with the AJ's recommended denial of class certification
on the ground that a retaliation allegation may not lawfully be the
basis of a class action. Retaliation claims may form the basis of class
complaints where the class establishes a general practice of retaliation
against employees who oppose discriminatory practices or exercise rights
protected under Title VII. Holsey v. Armour & Co., 743 F.2d 199, 216-17
(4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). The Commission has
held that reprisal is an appropriate basis for a class complaint when
there is a showing that specific reprisal actions were taken against a
group of people for challenging agency policies, or where reprisal was
routinely visited on class members. Levitoff v. Department of Agric.,
EEOC Appeal No. 01913685 (Mar. 17, 1992), request for reconsideration
denied, EEOC Request No. 05920601 (Sept. 10, 1992).
We conclude that the record is insufficiently developed on the issues
pertinent to a determination of class certification to permit the
Commission to render a decision on class certification. Additional facts
must be developed, including whether the proposed class complaints
satisfy the requirements stated above to state a claim of class-based
retaliation. Accordingly, it is the decision of the Commission to VACATE
the agency's final decision and REMAND the matter to the appropriate EEOC
hearings unit for assignment of an AJ for development of the record and
further processing pursuant to 29 C.F.R. � 1614.204.
ORDER
The above-mentioned complaints of discrimination are remanded to the
Hearings Unit of the EEOC's Miami District Office for assignment to
an Administrative Judge for further processing pursuant to 29 C.F.R. �
1614.204 and this decision. The agency is directed to submit a copy of
the complaint files to the Miami District Office's Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below in the statement entitled �Implementation of
the Commission's Decision� that the complaint files have been transmitted
to the Hearings Unit as ordered above.
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
August 14, 2002
Date
1 Complainant prefaced this allegation in her first class complaint by
stating that �[t]here is a serious continued pattern of [sic] practice
of discrimination at the Panama City Post Office.� She also completed
the portion of the complaint form which asked for the date upon which
the discriminatory event occurred, indicating January 17, 1998 as the
date that the alleged discrimination had taken place.