Anette B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionOct 26, 20180120171536 (E.E.O.C. Oct. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anette B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120171536 Agency No. 4V-511-0003-16 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 24, 2017, concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the reasons set for below, we VACATE the Agency’s final decision and REMAND this matter for a hearing in accordance with 29 C.F.R. § 1614.109. Complainant worked as a Supervisor of Vehicle Maintenance, EAS-17, at the Agency’s Vehicle Maintenance Facility in Omaha, Nebraska. On July 17, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (57), and reprisal (prior protected EEO activity) when, on March 4, 2016, she became aware that she was the only management official at the facility who did not receive a pay increase for Fiscal Year 2015. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 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. 0120171536 2 After determining that Complaint failed to request either a hearing or a final agency decision without a hearing, the Agency issued its final decision in which it concluded that Complainant failed to present enough evidence to support her discrimination claim. On appeal, Complainant maintains that she did timely file a request for a hearing that had been received by the AJ and by the Agency. The Commission’s regulations provide that the Agency shall provide Complainant with a copy of the investigative file and notify Complainant that, within 30 days of receipt of the investigative file, Complainant has the right to request a hearing and decision from an AJ or may request an immediate final decision from the Agency. 29 C.F.R. § 1614.108(f). Where Complainant has received the notice required in subparagraph (f), she may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the Agency’s acknowledgement letter. 29 C.F.R. § 1614.108(h). The Complainant shall send a copy of the request for a hearing to the Agency EEO office. Id. The transmittal of the investigative file for Agency Complaint No. 4V-511-0003-16 was dated December 2, 2016. The document was assigned Tracking Number 9114-9999-4431-4566-0477- 97. The transmittal includes a notice that Complainant had the right to request a hearing before an EEOC AJ or request a final decision without a hearing within 30 calendar days of the date that the notice is received by Complainant. The notice further stated that if Complainant failed to make a choice between the two available options within the 30-day timeframe, the Agency would issue a final decision. Finally, the notice directed Complainant to send copies of the notice to the Hearings Unit of the Commission’s District Office in St. Louis, Missouri, and to the Hearings Division within the Agency’s National EEO Investigative Services based in Tampa, Florida. According to the documentation corresponding to Tracking Number 9114-9999-4431-4566-0477- 97, Complainant received the investigative file and the notice of right to request a hearing on December 5, 2016. That means that she had until January 4, 2017 to file her hearing request. Complainant completed and signed a written request for a hearing and dated the request January 3, 2017. A receipt from her local post office indicated that the hearing request was given Tracking Number 9505-5126-4878-7003-0361-17 and confirmed that Complainant had delivered it to the post office on January 3, 2017. The receipt further indicated that the document’s destination was St. Louis, Missouri, and that the expected delivery date was January 5, 2017. Likewise, the receipt indicates that Complainant sent documentation to Tampa, Florida at the same time. This documentation conclusively establishes that Complainant had submitted her hearing request within the requisite 30-day time frame established by EEOC regulation 29 C.F.R. § 1614.108(f). CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Commission VACATES the Agency's final decision and REMANDS the matter to the Agency for further processing in accordance with this decision and the ORDER below. 0120171536 3 ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's St. Louis 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 (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 0120171536 4 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. 0120171536 5 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 (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 October 26, 2018 Date Copy with citationCopy as parenthetical citation