0120162492
06-13-2018
Branda M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Branda M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120162492
Hearing No. 532-2014-00059X
Agency No. 4C-440-0182-12
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 23, 2016 final action concerning her equal employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, we VACATE the Agency's final action.
ISSUE PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge's decision was based on the wrong complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier Technician at the Agency's Hudson Post Office facility in Hudson, Ohio. Complainant alleged disability discrimination because she was caring for her ninety-six (96) year old father who had terminal cancer. Management was aware of this association, as Complainant had filed Family and Medical Leave Act (FMLA) with the Agency, and it had been approved. On November 16, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal and disability when:
1. On various dates, including June 13, 2012; June 22, 2012; July 2S, 2012; August 6, 2012; and November 2, 2012, she was observed on her route and multiple times not provided a PS Form 4584 (Observation of Driving Practices);
2. On July 16, 2012, she was denied overtime and yelled at by a supervisor;
3. On August 1,2012, she was harassed regarding her leaving time;
4. On August 4, 2012, she was harassed regarding a tub of spurs and subsequently denied overtime;
5. On various dates, she was denied overtime;
6. On or about August 7 and 9, 2012, others were asked about a 7:00 a.m. start time and she was not;
7. On August 23, 2012, management mismanaged her assignment which resulted in her having to take leave to supplement her 8-hour day;
8. On August 28, 2012, she was given an assignment off her string of routes;
9. On an unspecified date in October 2012, she was not given her "Voice of the employee" survey form;
10. On November 24, 2012, she was harassed about her work assignment;
11. On December 11, 2012, she was given a PDI (Pre-Disciplinary Interview);
12. On December 3, 2012, she was shown a falsified report;
13. On September 7,2012, her schedule was changed abruptly;
14. Beginning November 9, 2012, management set her up for failure on her start times;
15. She was issued a Letter of Warning, dated March 21, 2013;
16. On March 5, 2013, she was instructed to bring in documentation to substantiate her FMLA absence;
17. On August 6, 2013, she requested sick leave for August 15, 2013, and she was asked to provide documentation;
18. On August 17, 2013, she was informed that she was scheduled to come in early on August 19, 2013; and
19. On August 22, 2013, she received a PS Form 3971 stating that she was late for work on August 20, 2013, and charging her with Leave Without Pay (LWOP).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On June 6, 2014, the Agency filed a motion for a decision without a hearing with AJ1. According to Complainant, she filed an opposition to the Agency's motion on June 23, 2014.2 Two years later, a new Administrative Judge had been assigned to the case, AJ2. On June 15, 2016, AJ2 granted the Agency's motion after finding no discrimination. On June 23, 2016, the Agency issued a final order adopting AJ2's decision. The instant appeal followed.
A review of AJ2's decision indicates the following findings of facts:
1. On June 4, 2012, the Agency filed a Motion for a Decision Without a Hearing, and Complainant failed to file a response to the Motion; and
2. The issue was whether Complainant was discriminated against based on her age, race, sex, and/or color when she was subjected to harassment based on a hostile environment.
AJ2 discussed a series on incidents that took place between May 31, 2011 and concluded on September 21, 2011, along with Complainant being denied overtime on various unspecified dates.
CONTENTIONS ON APPEAL
On appeal, Complainant, in pertinent part, contends that AJ2 inadvertently addressed a previously filed complaint, not the complaint at issue in her instant case. She asks that the Agency's final action be vacated and her complainant remanded for a hearing.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for AJ2 to have issued a decision without a hearing on this record. Based upon a careful review of the record, we find that AJ2 erred by not addressing Complainant's Agency Case No. 4C-440-0182-12. At the outset, we note AJ2's erroneous determination that the Agency's motion for summary judgment was filed on June 4, 2012, which was five months before Complainant filed the EEO Complaint at issue on November 17, 2012. On September 5, 2014, the Commission issued a decision concerning Complainant's Agency Case No. 4C-440-0142-11. In EEOC Appeal No. 0120130333 (Sep. 5, 2014) the Commission addressed the exact issues that AJ2 mistakenly addressed in her decision. We further note that the Administrative Judge who granted summary judgment in Agency Case No. 4C-440-0142-11 indicated that the Agency's motion for summary judgement was filed on June 4, 2012, and that Complainant did not file a response. We are certain that AJ2 thought that she was addressing Agency Case No. 4C-440-0182-12, when she was in fact addressing Agency Case No. 4C-440-0142-11, a previous complaint filed by Complainant.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to VACATE the Agency's final action, and REMAND this complaint for a hearing.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Cleveland Field Office 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 that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing 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.
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, 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
6/13/18__________________
Date
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.
2 A copy of the opposition was not provided.
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