Meaghan F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120143146 (E.E.O.C. Mar. 11, 2016)

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

Meaghan F.,1
Complainant,

v.

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

Appeal No. 0120143146

Hearing No. 451-2011-00073X

Agency No. 4G-780-0075-10

DECISION

The Commission accepts Complainant’s appeal from the August 12, 2014 final Agency
decision (FAD) 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. For the following reasons, the Commission
VACATES the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate at the Agency’s Post Office in Goliad, Texas. On March 10, 2010, Complainant
filed a formal complaint alleging that the Agency discriminated against her and subjected her to
a hostile work environment on the bases of sex (female) and in reprisal for prior protected
EEO activity as evidenced by multiple incidents including, inter alia:

1. On October 28, 2009, during his lunch break, her supervisor (S1) followed
Complainant on her route and commented that he was “looking for women;”

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 January 8, 2010, S1 was at a picnic table across from Little League;

3. On January 26, 2010, S1 sat in his car in the Post Office parking lot, watching her
unload her car until Complainant's husband arrived;

4. On January 28 or 29, 2010, S1 attempted to obtain Complainant’s email address;

5. On February 19, 2010, after an EEO meeting, S1 conducted a driving observation
of Complainant; and

6. On March 8, 2010, S1 was sitting in a parking lot on Rt. 1.

On March 29, 2010, the Agency dismissed the complaint for failure to state a claim.
Complainant appealed and, in Complainant v. U.S. Postal Serv., EEOC Appeal No.
0120143146 (Aug. 27, 2010), the Commission reversed the Agency’s dismissal and remanded
the complaint for further processing.

At the conclusion of the investigation of the remanded complaint, the Agency provided
Complainant with a copy of the report of investigation and notice of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant initially requested a hearing. The AJ assigned to the matter issued an Agreed
Dismissal Order dismissing Complainant’s hearing request without prejudice on June 30, 2011,
because a principal witness, S1, was being deployed for military service. The parties agreed
that within 30 days of S1’s return to duty from military deployment, Complainant could elect
to reinstate her hearing request. S1 returned to duty from military service effective January 6,
2014. In July 2014, the Agency was advised by the Commission’s San Antonio Field Office
that Complainant had not reinstated her hearing request. As a result, the Agency issued a FAD
in accordance with 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant’s attorney contends that she timely filed a Request for Hearing on
January 8, 2014, electronically in accordance with the requirements of the San Antonio Field
Office. As proof, Complainant’s attorney submits a copy of the email and the attached
Request for Hearing that she sent to the AJ. Complainant’s attorney notes that she also sent a
copy of the request to the Agency electronically and through regular mail, and the Agency did
not deny that it received it. Complainant’s attorney states that after receiving the FAD, she
contacted the AJ and the Agency in an attempt to resolve the issue, but the Agency did not
respond. Complainant’s attorney notes that she did the same for a companion case under the
same circumstances with another AJ, but the AJ received the request in that case. In addition,
Complainant’s attorney argues that there is sufficient evidence to support Complainant’s claims

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of sexual harassment and retaliation. Accordingly, Complainant requests that the Commission
reverse the FAD.

ANALYSIS AND FINDINGS

The Commission finds that the Agency erred in issuing a FAD when Complainant timely
requested reinstatement of her hearing request. Record evidence reveals that the parties agreed
that Complainant could reinstate her request for a hearing within 30 days of S1’s return from
military deployment. The record shows that S1 returned to duty on January 6, 2014. The
record further reveals that, on January 8, 2014, Complainant’s attorney submitted a Request
for Hearing electronically to the San Antonio Field Office and to the Agency in accordance
with the AJ’s June 30, 2011 Agreed Dismissal Order. Complainant’s attorney also sent the
Agency a copy of the request by regular mail. Nonetheless, the Agency issued a FAD on
August 12, 2014. The San Antonio Field Office had no record of receiving the request;
however, the AJ acknowledged in correspondence with Complainant’s attorney that it appeared
that her request was timely. The AJ encouraged Complainant to confer with the Agency to
determine if the matter could be resolved without an appeal to the Commission. The Agency
has not denied that it received the request or otherwise challenged Complainant’s contentions
regarding the hearing request.

The Commission concludes that Complainant has sufficiently established that she timely
requested reinstatement of her hearing request in accordance with the Agreed Dismissal Order.
In the interest of preserving access to the EEO process, the Commission finds that
Complainant properly requested a hearing before an EEOC AJ. As such, the Commission
finds that the Agency erred in issuing a FAD in this case.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Commission VACATES the final Agency decision and
REMANDS the complaint for a hearing before an Equal Employment Opportunity
Commission Administrative Judge.

ORDER

The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the
EEOC San Antonio Field Office within fifteen (15) calendar days of the date this decision
becomes final. 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 hold a hearing and 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.

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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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party.

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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 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

March 11, 2016
Date