Alvera L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2017

0120160075 (E.E.O.C. Dec. 19, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alvera L.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120160075

Agency No. 1F-924-0009-13

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the September 1, 2015 final Agency decision (FAD) concerning her
complaint of unlawful employment discrimination in violation of 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. For
the following reasons, the Commission VACATES the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in San Bernardino, California. On
May 30, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of disability and age (61) when, in or around February 2012, she
submitted updated medical documentation; however, she was not permitted to return to work
until February 2013.

The Agency processed the matter as a mixed-case complaint, and issued a decision on October
10, 2013. In that decision, the Agency determined that Complainant had not been subjected to
discrimination as alleged. Complainant filed an appeal with the Merit Systems Protection Board

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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(MSPB). On February 25, 2015, the MSPB dismissed Complainant’s appeal for lack of
jurisdiction. Complainant filed a petition seeking review of the MSPB final order and, in
Petitioner v. U.S. Postal Serv., EEOC Petition No. 0320150039 (Apr. 3, 2015), the Commission
denied the petition and remanded the matter to the Agency for it to process Complainant’s
discrimination allegations. In addition, the Commission ordered the Agency to notify
Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ) or to
request an immediate final Agency decision.

The Agency claimed that it provided Complainant with a copy of the report of investigation
(ROI) and notice of her right to request a hearing before an AJ on June 24, 2015. The Agency
asserted that it received no response from Complainant within the time frame provided in 29
C.F.R. § 1614.108(f); therefore, it issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that neither she nor her representative received the ROI or the
notice of her right to request a hearing. Complainant states that her rights were violated and she
wants the right to request a hearing for the chance to receive justice. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.108(f) provides in relevant part that the agency shall provide
the complainant with a copy of the investigative file, and shall notify the complainant, that
within 30 days of receipt of the investigative file, the complainant has the right to request a
hearing and decision from an Administrative Judge or may request an immediate final decision
pursuant to § 1614.110 from the agency with which the complaint was filed.

Upon review of the record, the Commission is not persuaded that the Agency complied with the
requirements above. The record contains a copy of the June 24, 2015 Transmittal of
Investigative File letter, the Request for Hearing form, and the ROI. The record does not,
however, contain evidence indicating that the ROI was delivered to Complainant or
Complainant’s representative. As noted above, Complainant maintained that neither she nor her
representative received the ROI or notice of her right to request a hearing. Complainant further
indicated that she wanted her right to request a hearing for a fair playing field and a chance to
receive justice. The Agency did not respond to Complainant’s assertion that she did not receive
the ROI or notice of her right to request a hearing. The record does not contain evidence
establishing that Complainant or her representative received the report of investigation or were
informed of Complainant’s right to request a hearing. The Commission has repeatedly stated
that “the agency has the burden of providing evidence and/or proof to support its final
decisions.” Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); See
Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992). As such, the Commission
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finds that the Agency has not refuted Complainant’s contention that she did not receive the ROI
and notice of right to request a hearing. Given that Complainant has already indicated on appeal
that she desires to have a hearing in this case, the Commission will direct the Agency to submit a
copy of the complaint file, including the ROI, to the Los Angeles District Office.

CONCLUSION

Accordingly, the Agency's final decision is VACATED. The complaint is hereby REMANDED
to the Agency for further processing in accordance with this decision and the ORDER below.

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the
Los Angeles District Office within fifteen (15) calendar days of the date this decision is issued.
The Agency shall provide written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall process the hearing request and issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)
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,
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facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 19, 2017
Date