Cleora W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 20160520160071 (E.E.O.C. Apr. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleora W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Request No. 0520160071 Appeal No. 0120151685 Agency No. 4G760003115 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120151685 (October 2, 2015). The U.S. Equal Employment Opportunity Commission (EEOC or Commission) Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The underlying complaint alleges that the Agency discriminated against Complainant and created a hostile work environment based on race (African-American), sex (female), age (born in 1960), and retaliation (prior EEO activity) when: (1) on November 3, 2014, after the completion of an agreement between the union and the Agency, she had not been converted to a career employee; (2) on November 12, 2013, her battery test and physical requirement was removed from her official personnel file causing her name to be eliminated from the seniority register; (3) on November 12, 2013, the Agency Completed Employee Compensation and Benefits Report in her personnel file showed lost work hours; (4) on December 15, 2014, she 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. 0520160071 2 received a personnel action stating termination effective December 5, 2014; and (5) she was not issued a paycheck for hours worked from November 25 through December 8, 2014. In its March 13, 2015 final decision, the Agency dismissed claims 1 and 2 for stating the same claims that were raised in a prior EEO complaint, pursuant to 29 CF,R. § 1614.107(a)(1). Specifically, the Agency found that claims 1 and 2 raise the same matter in Agency Case No. 4G-760-0031-14. The Agency also dismissed claims 2 and 3 on the grounds of untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO counselor contact was on November 12, 2014, which it found to be beyond the 45-day limitation period. Further, the Agency dismissed claim 4 pursuant to 29 C.F.R. § 1614,107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved. Regarding claim 5, the Agency dismissed this claim pursuant to 29 CF.R. § 1614.107(a)(5), on the grounds of mootness. The Agency noted that due to a processing error on the paperwork that followed Complainant's contractual break in service, her paycheck was delayed. The record reflects that Complainant was issued pay advancement immediately after she notified management that her check was missing. The Agency, therefore, determined that there was no reasonable expectation that the alleged actions would recur. Complainant appealed the Agency’s decision and the Commission reversed. Specifically, with respect to claims 1 and 2, the Commission noted that the Agency failed to meet it burden by producing a copy of the above mentioned prior complaint showing that Complainant had pursued the same matter previously. The Commission also found claims 2 and 3 timely, as various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's November 12, 2014 EEO counselor contact. With respect to claim 4, the Agency found that a fair reading of Complainant’s formal complaint indicates that she was subjected to a series of related incidents of harassment from November 2013 through the then present time, which properly includes claim 4. With respect to claim 5, the Commission found that when viewing the subject claim in the context of the purportedly hostile work environment articulated by Complainant, the record does not support mootness. The Commission also noted that Complainant has specifically alleged that it is very likely that the alleged discriminatory harassment will continue to occur. In her reconsideration request, Complainant wants her retaliation claim distinguished from her harassment claim. In addition, she seeks assurances that “all the series of related incidents of retaliation as noted on page 4, paragraph 3 of the [Commission’s] decision be duly noted in accordance with the continuing violation doctrine as all incidents from October 29, 2001 to present be included in her claim. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. We note that nothing in the Commission’s decision shall change the fact that Complainant did indeed raise a retaliation claim and a harassment claim. In addition, upon remand to the Agency, Complainant has the right to present all relevant background evidence to the Agency to be included in the EEO investigation. The decision in 0520160071 3 EEOC Appeal No. 0120151685 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 CF.R, § 1614.108 et seq. The Agency shall acknowledge to Complainant that he has received the remanded claims within thirty (30) calendar days of this decision. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of die 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 77960, Washington, DC 20013. 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, 408 and 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 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. 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. 0520160071 4 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 April 8, 2016 Date Copy with citationCopy as parenthetical citation