Jacinto Q.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120172274 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jacinto Q.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120172274 Agency No. 4E852016516 DECISION On June 12, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 9, 2017, final decision (FAD) concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, Q-01 at the Agency’s Main Post Office facility in Mesa, Arizona. On September 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Hispanic)2 when, on April 18, 2016, Complainant’s Manager (“M”) (White) issued him a Notice of Proposed Adverse Action- Removal for Violation of the Agency’s Standards of Conduct, which was subsequently reduced to a Letter of Decision modifying it to a 14-Day (No Time Off) Suspension on July 27, 2016. 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 The Commission considers “Hispanic” to denote a national origin, not a race. However, we adopt the nomenclature used by Complainant. 0120172274 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Believing Complainant had not requested a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS EEOC regulations at 29 C.F.R. § 1614.108(f) provide that an agency shall provide a complainant with a copy of the investigative file and notification that, within thirty days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an AJ or may request an immediate final decision. Here, the FAD states that the Agency sent the copy of the investigative file and the notice of Complainant's right to a hearing on March 8, 2017. On appeal, Complainant has submitted a copy of a completed and signed hearing request dated April 5, 2017, addressed to the EEOC Phoenix District Office, along with a United States Postal Service (USPS) certified mail receipt under tracking number 7016 1370 0000 2540 1342, showing that USPS delivered the item on April 7, 2017. We further take administrative notice of the fact that the Commission's internal records show that the hearing request was entered into our own records on April 10, 2017, and was docketed under EEOC Hearing No. 540-2017-001826X. We therefore find that the evidence of record shows that Complainant timely requested a hearing and is entitled to receive one. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's final decision, which found that Complainant was not subjected to discrimination based on disability or reprisal, is VACATED, and the complaint is REMANDED for further processing consistent with this decision and the ORDER below. ORDER Within thirty (30) calendar days from the date this decision is issued, the Agency shall send a hearing request with a brief explanation, a copy of this decision and the complaint file to the Hearings Unit of the Commission's Phoenix District Office. The Agency shall reference EEOC Hearing No. 540-2017-001826X in its correspondence with the Phoenix District Office. 0120172274 3 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 process the case 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. 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). 0120172274 4 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation