Lino L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2019001000 (E.E.O.C. Dec. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lino L.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 2019001000

Agency No. 1K-211-0076-17

DECISION

On September 20, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 12, 2018 final decision 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

During the period at issue, Complainant worked as a Tractor Trailer Operator at the Agency’s
Baltimore Processing and Distribution Center in Baltimore, Maryland.

On December 23, 2017, Complainant filed the formal EEO complaint (identified as Agency No.
1K-211-0076-17) (hereinafter referred to as “Complaint 2”) at issue in this appeal. Complainant
claimed that the Agency discriminated against him based on sex (male) and in reprisal for prior
EEO activity when:

1. on or around September 15, 2017, his request for detail opportunities to the Tour 2
Network Specialist position and the Tour 2 Motor Vehicle Service (“MVS”)
Supervisor position were denied; 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.
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2. on February 22, 2018, the Transportation Manager ordered his supervisor to issue him
a Pre-Disciplinary Interview (“PDI”) for a minor offense and, on March 15, 2018, he
was issued a Notice of 7 Day Suspension.

The record also shows that Complainant had previously filed an earlier EEO complaint
(identified as Agency No. 1K-211-0047-17) (hereinafter referred to as “Complaint 1”). At the
time Complainant filed Complaint 2, Complaint 1 had been investigated and was pending a
hearing before an EEOC Administrative Judge (AJ).

On March 29, 2018, the assigned AJ issued an order dismissing the hearing request for
Complaint 1 “without prejudice” following a status conference in order to follow the
investigation of Complaint 2 to be completed and allow the two complaint to be consolidated for
further processing. The AJ’s order stated, in relevant part:

By email of March 23, 2018, Complainant’s counsel has agreed to the withdrawal
of the hearing request, without prejudice, in Agency No. 1K-211-0047-17
[Complaint 1]. The AJ will hold the instant matter in his files until such time both
hearing requests will be returned to him so that matters can be addressed at the
same time.

On April 13, 2018, the AJ issued another order dismissing a hearing request for Complaint 2.
Specifically, the AJ determined that Complainant’s request for a hearing was premature, that
Complainant had filed the formal complaint on December 23, 2017, and that the “complaint is
still in the investigative phase with the Agency and 180 days has not passed since the December
23 filing.” The AJ made no reference to Complaint 1 in this Order of Dismissal.

After the investigation of Complaint 2 was completed, Complainant was provided with a copy of
the report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Without a hearing, the Agency issued its September 12, 2018 final decision on Complaint 2,
concluding no discrimination was established based on the evidence developed during the
investigation.

The instant appeal followed. On appeal, Complainant’s attorney argues that the Agency should
not have issued the final decision without a hearing. He submits a copy of a request for a hearing
and consolidation of complaints, dated July 17, 2018, which he asserts was filed with the EEOC
hearings unit prior to the Agency’s issuance of its final decision. Complainant’s attorney noted
that the March 29, 2018 Order of Dismissal without prejudice in Complaint 1 had been issued by
the AJ because there was then-pending an investigation “of a similar complaint in [Complaint 2]
that was not complete.” Complainant’s attorney states that because the subsequent investigation
of Complaint 2 was now completed, matters are now “ripe for a hearing.”
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ANALYSIS AND FINDINGS

Given the specific facts in this case, as discussed above, we find just cause for vacating the
Agency’s final decision on Complaint 2, and therefore will not review whether the Agency
properly found no discrimination was established.

In the March 29, 2018 order, the EEOC AJ dismissed the hearing request for Complaint 1,
without prejudice, during the pendency and completion of investigation of Complaint 2. The
record abundantly illustrates that at that time, the AJ contemplated that hearing requests for both
complaints would be returned to the AJ and “all the complaints would be considered together.”
Complainant’s counsel appropriately filed a request for a hearing and consolidation of the two
complaints on July 17, 2018, with the Hearings Unit of the EEOC’s Baltimore Field Office. An
attached certificate of service attests to the fact that counsel served this request on both the
Agency’s legal representative and the EEOC AJ.

Therefore, the Agency’s final decision on Complaint 2 without a hearing, dated September 12,
2018, was prematurely issued and is VACATED. Complaint 2 is REMANDED to the Agency
for consolidation with Complaint 1, as more fully detailed in our ORDER below.

ORDER

The Agency is ORDERED to take the following actions:

The Agency shall submit to the Hearings Unit of the Baltimore Field Office the request for a
hearing and a copy of the complete complaint file for Complaint 2 (Agency No. 1K-211-0076-
17) within fifteen (15) calendar days of the date of this decision. In addition, the Agency shall
submit a copy of this decision and bring to the attention of the Hearings Unit, Baltimore Field
Office, that Complaint 2 should be consolidated with Complaint 1 (Agency No. 1K-211-0047-
17) for hearing. If the AJ no longer has the complaint file for Complaint 1, he may order the
Agency to produce it.

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 issue a decision on the matter 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 (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.
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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.
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.
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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.
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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

December 26, 2019
Date