EEOC Appeal No. 0520150345
09-04-2015
Complainant v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520150345
Appeal No. 0120133341
Agency No. 1G756001213
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120133341 (April 1, 2015). EEOC 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).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request.
BACKGROUND
Complainant filed an EEO complaint on February 20, 2013, alleging discrimination on the basis of retaliation for prior EEO activity when, on November 27, 2012, she reported that a truck driver subjected her to harassment sufficient to create a hostile work environment, and management failed to investigate when she reported it or handle it appropriately, to include taking her out of her assigned work area.
The previous decision affirmed the Agency's final decision which found that Complainant was not discriminated against as alleged. In reaching this conclusion, the previous decision noted that Complainant did not provide an affidavit during the investigation.
On request for reconsideration, Complainant asserts that our previous decision erred in affirming the Agency's final decision without addressing her argument that the Agency should not have adjudicated her complaint until she was able to participate in the investigation of her claim.
Complainant explained that she is a member of the Air National Guard and was deployed from February 19 through August 3, 2013. Complainant provided copies of her military deployment papers. In addition, she submitted certified mail receipts establishing that she informed the Agency of her deployment before it commenced investigating her complaint. She asked the Agency to hold her complaint in abeyance until her return. The record reflects, however, that despite her request that her complaint be held in abeyance, the Agency continued processing her complaint, including conducting the investigation without her participation. Complainant also noted that she had another EEO complaint (1G-756-0034-12) pending before the Agency during this same period and it was held in abeyance when she was deployed, while the instant complaint was not. Finally, Complainant stated that she informed the Agency as soon as her deployment was over, but it went ahead and issued the final decision anyway without allowing her to further participate in the processing of her complaint. We note that the Agency has not disputed Complainant's contentions. We also note that Complainant raised similar arguments in her original appeal.
ANALYSIS
The Commission has previously held that the time period during which a complainant was in active duty status is excluded from the computation of time in determining whether a complaint was timely filed. See Thomas v. U.S. Postal Serv., EEOC Request No. 05990488 (Oct. 14, 1999); Myrbeck v. Dep't of Veterans Affairs, EEOC Request No. 05970331 (Apr. 10, 1997); Cross v. U.S. Postal Serv., EEOC Request No. 05940901 (May 18, 1995). Additionally, Commission regulations governing computation of time limits allow for waiver and/or equitable tolling under 29 C.F.R. � 1614.604(c). Under the circumstances of this case, it is appropriate to equitably toll any time limits for providing an affidavit or request a hearing.
We find that Complainant has provided sufficient evidence to show that she was subjected to deployment in active duty and that the Agency was on notice of such before it conducted the investigation and issued its FAD. The Agency should have held her case in abeyance while she was deployed, such as it appears it has done for her other EEO complaint. The Agency provided no arguments or sworn statements to the contrary. Complainant must, at a minimum, be given an opportunity to participate in the investigation by providing an affidavit, as well as responding to the affidavits from management, and the right to request a hearing. In other words, processing of the complaint should be reinstated.
After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Appeal No. 0120133341 and the Agency's final decision are VACATED and the matter is REMANDED to the Agency for further processing in accordance with the following Order. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
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 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 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, 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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.
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 Complainants 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
September 4, 2015
__________________
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