[Redacted], Elenore F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal No. 2020004161 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elenore F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004161 Hearing No. 420-2020-00045X Agency No. 4G-350-0073-19 DECISION On May 23, 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 30, 2020, final order 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, we VACATE and REMAND the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier, R- 00/B, at the Northport Post Office in Northport, Alabama. On June 1, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On a date to be specified, her route was reduced in size after a route adjustment; 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. 2020004161 2 2. On date(s) to be specified, she has been threatened and harassed by coworkers, and on date(s) to be specified, after reporting these incidents, management failed to properly address the matter; 3. On date(s) to be specified, she was instructed to stay out of managerial affairs; 4. On December 11, 2018 and December 31, 2018, and on other date(s) to be specified, her request to use a postal vehicle to deliver her route was denied; 5. On or about January 28, 2019 and February 8, 2019, her request for leave was denied; 6. On or about February 12, 2019, she was issued a 14-day suspension for unsatisfactory attendance and failure to follow instructions; 7. On or about April 17, 2019, she was issued a notice of removal dated April 16, 2019, for unacceptable conduct/absent without leave (AWOL), and unsatisfactory attendance; 8. On date(s) to be specified, she was asked to remove her sunglasses; 9. On unspecified dates, after filing grievances, the union and management both deceived her; and 10. In November 2017, due to a route adjustment, her route became a 48K route, and she was not adequately informed of this change. The Agency subsequently accepted claims 1 to 8 for investigation. However, with regard to claims 9 and 10, the Agency dismissed these claims on the grounds of failure to state a claim and untimeliness. Specifically, for claim 9, the Agency found that Complainant’s claim of discrimination concerning her grievances constituted a collateral attack on the negotiated grievance process under the collective bargaining agreement. As such, the Agency concluded that such claim was inappropriate for the EEO process. For claim 10, the Agency found the claim to be untimely raised and consequently dismissed it. The Agency then commenced an investigation into the accepted claims. During the EEO investigation, Complainant expressly declined to provide an affidavit. See Report of Investigation (ROI) at 00093. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter denied the hearing request on the grounds that Complainant failed to cooperate during the hearing process. In so finding, the AJ noted that she ordered Complainant to 1) submit a preliminary case information report; 2) provide an affidavit; and 3) attend the initial teleconference, but Complainant failed to comply. As the AJ had previously warned Complainant about the potential consequences for failure to cooperate, the AJ concluded that dismissal of the hearing request was appropriate. Consequently, the AJ remanded the complaint to the Agency for the issuance of a final order. In accordance with the AJ’s order, the Agency issued a final order on April 30, 2020, implementing the AJ’s dismissal for failure to cooperate. This appeal followed 2020004161 3 CONTENTIONS ON APPEAL Initially, we note that EEOC Regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. As Complainant filed her appeal on May 23, 2020, she was required to file any statement or brief in support of her appeal by June 22, 2020. However, the record reflects that she did not file her brief until September 28, 2020, after approximately 128 days had elapsed. As Complainant has not offered any explanation for her filing her brief late, we decline to consider it. The Agency opposes the appeal, and requests that the Commission affirm its final order. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS As discussed above, the AJ dismissed the hearing request because Complainant failed to submit a preliminary case information report and affidavit and she did not attend the initial teleconference. We note that the AJ, in dismissing the complaint, did not order the Agency to issue a final agency decision (final decision) on the merits of the complaint. Rather, the AJ simply ordered the Agency to issue a final order either implementing or rejecting the dismissal. Having reviewed the record, we find that the AJ was well within her discretion to dismiss the complaint pursuant to 29 C.F.R. § 1614.109(f)(3), as the record shows that Complainant did not comply with the AJ’s orders. However, we find that the AJ should have ordered, and the Agency should have issued, a final decision on the merits of the complaint. The Commission has held that as a general rule, an agency should not dismiss a complaint when it has sufficient information on which to base an adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (Aug. 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193 (Apr. 12, 1990). It is only in cases where a complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998); Kroeten v. U.S. Postal Serv., EEOC Request No. 05940451 (Dec. 22, 1994). 2020004161 4 As we find the record in this case to be sufficient for adjudication, we shall remand the matter to the Agency for the issuance of a final decision on the merits of the entire complaint. We remind the Agency that it has the burden of providing evidence and/or proof to support its final decisions. See Shawn C. v. Dep’t of Agric., EEOC Appeal No. 2019000657 (Aug. 19, 2020), citing Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993) (noting that the agency has the burden of providing evidence and/or proof to support its final decisions). 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 order and REMAND the matter to the Agency for the issuance of a final decision on the merits of the entire complaint. ORDER The Agency is ordered to issue a final decision on the merits of the complaint at hand with 30 calendar days of the date this decision is issued. 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). 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. 2020004161 5 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. 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). 2020004161 6 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 December 7, 2021 Date