[Redacted], Cassandra N., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020003315 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassandra N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003315 Agency No. 4G-350-0150-19 DECISION On May 4, 2020, 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 April 14, 2020 final decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Full-Time Rural Carrier, 00/01, at the Agency’s Post Office in Dothan, Alabama. On August 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and disability (Narcolepsy) 2 when: (1) on or about June 14, 2019, Complainant's route was reduced which subsequently reduced her pay; (2) on or about June 19, 2019, management did not allow Complainant to fill the job position (Route 28) in which she was the successful bidder; (3) effective June 27, 2019, Complainant was forced to 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 Complainant withdrew the purviews of sex and race discrimination during the investigation. 2020003315 2 resign from her postal service position; (4) on or about July 2019, Complainant became aware that management used her Annual Leave instead of her X days; (5) on unspecified dates, Complainant was not accommodated with a Long Life Vehicle; and (6) on unspecified dates, during route inspection, Complainant was not allowed to respond. At the conclusion of the investigation, the Agency asserts that it 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). When Complainant did not request 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 her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that she never received the investigative report and was never given an opportunity to request a hearing before an AJ. Accordingly, Complainant requests that the Commission reverse the final decision.3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(f) provides in relevant part that the agency shall provide the complainant with a copy of the investigative file and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an Administrative Judge or may request an immediate final decision pursuant to 29 C.F.R. § 1614.110 from the agency with which the complaint was filed. Upon review of the record, the Commission is not persuaded that the Agency complied with the requirements above. The record contains a copy of the January 29, 2020 transmittal letter, the Request for Hearing Form, and the report of investigation. The record does not, however, contain evidence indicating that such documents were delivered to Complainant. As noted above, Complainant maintains that she did not receive the report of investigation or notice of her right to request a hearing. Complainant further indicates that she intended to request a hearing. The transmittal letter contains a tracking number associated with it. However, the record is devoid of evidence that Complainant signed for or otherwise received the letter.4 The record therefore does not contain sufficient evidence establishing that Complainant received the report of investigation or was informed of her right to request a hearing. 3 Complainant’s appeal also addresses the merits of the Agency’s decision which shall not be addressed herein given our decision to vacate the decision. 4 On appeal, Complainant provides documentary evidence that the transmittal letter was returned to sender on March 17, 2020. 2020003315 3 The Commission has repeatedly stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); see also Maxima R. v. Dep’t Veterans Affairs, EEOC Appeal No. 0120172143 (Feb. 6, 2019). As such, the Commission finds that the Agency has not refuted Complainant’s contention that she did not receive the report of investigation and notice of right to request a hearing. Indeed, the Agency wholly ignores Complainant’s argument on appeal. Given that Complainant has indicated on appeal that she desires to have a hearing in this case, the Commission will vacate the Agency's final decision and remand this matter for a hearing in accordance with our Order below. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the matter to the Agency for processing in accordance with the Order below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall file a request for a hearing on behalf of Complainant with the Hearings Unit of the Commission's Birmingham District Office. The Agency is also directed to submit a copy of the complaint file, as well as a copy of this decision, to the Hearings Unit of the Commission's Birmingham District Office within 30 calendar days of the date this decision is issued. The Agency shall provide notification to the Office of Federal Operations via the Federal Sector EEO Portal as set forth below that the request and complaint file have 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 et seq. 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. 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). 2020003315 4 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020003315 5 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003315 6 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 August 3, 2021 Date Copy with citationCopy as parenthetical citation