Ebonie L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jan 30, 2020

2019000981 (E.E.O.C. Jan. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ebonie L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019000981 Hearing No. 470-2017-00153X Agency No. 4J-460-0028-13 DISMISSAL OF APPEAL On October 25, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Transitional Employee (TE) City Carrier, Q-02/A, at the Agency’s Rainbow Post Office in Indianapolis, Indiana. On May 10, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment on the bases of race (Caucasian), color (White), age (58), and in reprisal for prior protected EEO activity when: 1. From on or about January 10 through 28, 2013, managers did not provide Complainant with enough training or the equipment necessary to perform her duties; 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. 2019000981 2 2. From on or about January 10 through 28, 2013, management followed Complainant on her route, constantly badgered her about her time, and did not provide her with a time card; 3. On or about January 28, 2013, the Agency terminated Complainant from her position as a TE Carrier; and 4. Management withheld a paycheck owed to Complainant until March 23, 2013. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter held a hearing on December 18, 2014 and issued a decision on May 30, 2018 finding that the Agency subjected Complainant to discrimination and a hostile work environment. To remedy the discrimination, the AJ ordered the Agency to reinstate Complainant, calculate and pay Complainant back pay, pay Complainant $8,000 in compensatory damages, pay attorney’s fees and costs, and to post a notice. The Agency subsequently issued a final order fully implementing the AJ’s decision. On appeal, Complainant argues that the Agency is improperly processing her back pay request. Specifically, Complainant questions the Agency’s information on a back pay worksheet used in calculating her entitlement to back pay. Complainant claims that Agency officials are acting in bad faith and that the 30-day time period for payment has elapsed. The Agency responds that it has not yet issued a decision on Complainant’s entitlement to back pay and therefore, Complainant’s appeal is premature. The Agency nevertheless maintains it is properly processing Complainant’s entitlement to relief. The record here demonstrates that the Agency has not yet issued a determination regarding Complainant’s entitlement to back pay. Complainant’s attempt to appeal with respect to the back pay award is therefore premature because the Agency has not yet rendered a decision on the amount of back pay to be awarded to Complainant. See Sonia B. v. Tenn. Valley Auth., EEOC Appeal No. 0120170189 (Oct. 31, 2018); Carter v. U.S. Postal Serv., EEOC Appeal No. 01986648 (Oct. 19, 2000). Complainant's appeal is DISMISSED as premature, but the matter is REMANDED to the Agency for further action as set forth below. ORDER To the extent it has not already done so, within 60 days from the date this decision is issued, the Agency shall determine the appropriate amount of back pay, if any, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. The Agency shall provide Complainant the back pay and benefits within 60 days of the date of that determination. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. 2019000981 3 Complainant may petition the Commission for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer referenced in the statement entitled “Implementation of the Commission's Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2019000981 4 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. 2019000981 5 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 January 30, 2020 Date