Gia M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 14, 20180120180848 (E.E.O.C. Feb. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gia M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120180848 Agency No. 4F-920-0139-17 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 11, 2017, concerning her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Blue Jay Post Office. On July 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (spinal stenosis/bad knees) and age (54) when: 1. Complainant’s manager questioned her about her treatment of a subordinate and removed the subordinate from her office, but will not remove the subordinate from Complainant’s finance number or allow her to replace the employee causing Complainant’s service scores to go down and increased overtime and grievances; and 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. 0120180848 2 2. She has been denied OIC opportunities. At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and Notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The Notice was dated October 3, 2017. On December 11, 2017, the Agency issued a final decision on the merits of the complaint, finding no discrimination. Therein, the Agency noted that, following receipt of the ROI, Complainant had 30 days within which to request a hearing before an AJ or a final agency decision. The Agency noted, however, that as Complainant failed to request either a hearing or a final agency decision without a hearing, it issued its decision finding no discrimination in accordance with 29 C.F.R. § 1614.110(b). On appeal, Complainant claimed that she requested a hearing before an EEOC AJ on October 17, 2017. She notes her hearing request was received by the Hearing Office on October 18, 2017. Complainant provides a copy of her Request for Hearing Form stamped as “Received Oct 18 2017 EEOC/LADO Hearings.” In response to Complainant’s appeal, the Agency states that on December 20, 2017, an EEOC AJ notified the Agency of Complainant’s October 18, 2017 request for a hearing. The Agency notes the case is currently at the Hearings Unit. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.109(a) provides, in pertinent part: When a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing in accordance with this section. Upon appointment, the administrative judge shall assume full responsibility for the adjudication of the complaint, including overseeing the development of the record. In the present case, there is no dispute that before the Agency issued its final decision on December 11, 2017, Complainant had already filed a hearing request with the EEOC’s Los Angeles District Office. Our records indicate that the hearing request was docketed as EEOC Hearing No. 480-2018-00104X. Our records further show that the Los Angeles District Office received a copy of the complaint file on January 5, 2018, and that the hearing is currently pending. CONCLUSION Accordingly, it is the decision of the Commission to VACATE the final Agency decision and REMAND the complaint to the Agency for further processing in accordance with the ORDER herein. 0120180848 3 ORDER The Agency shall submit to the Hearings Unit of the EEOC’s Los Angeles District Office the request for a hearing and a copy of the complaint file to the EEOC Hearings Unit within 30 days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the request for a hearing and the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall 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 0120180848 4 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 0120180848 5 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 signature Carlton M. Hadden, Director Office of Federal Operations February 14, 2018 Date Copy with citationCopy as parenthetical citation