[Redacted], Sheldon M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2021003492 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheldon M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003492 Agency No. 4K-230-0109-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 2, 2021, dismissing a formal complaint alleging unlawful 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Debree Post Office in Norfolk, Virginia. On July 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (Caucasian), sex (male), religion (Christian), color (White), disability, age, and in reprisal for prior protected EEO activity (past EEO cases). By letter dated August 18, 2020, the Agency accepted Complainant’s complaint for investigation and determined that it was comprised of the following claims: 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 2021003492 1. On February 29, 2020, [Complainant was] issued a Letter of Warning (LOW). 2. On or about April 13, 2020, and continuing, management has failed to provide [him] with an 8-hour per day job assignment; and 3. On or about April 13, 2020, and continuing, [Complainant has] not been given overtime opportunities. On April 2, 2021, the Agency issued a final decision dismissing the formal complaint for failure to cooperate. The Agency reasoned that Complainant was sent an affidavit request on August 20, 2020, and that the EEO Investigator followed up with Complainant via email in December 2020. The Agency further set forth that the affidavit request and emails from the EEO investigator informed Complainant that his failure to timely respond to the information request could result in the dismissal of his complaint. The Agency found that Complainant did not submit a timely response to the affidavit request and set forth that “[w]ithout [his] articulation of specific details related to [his] claim, management is unable to respond to [his] complaints.” The instant appeal followed. On appeal, Complainant asserts that he requested official time to complete his affidavit but that it was not granted. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(7) provides that an Agency may dismiss a complaint for failure to cooperate, or alternatively, adjudicate the complaint if sufficient information for that purpose is available. The regulation is applicable under the following circumstances: (1) the Agency has provided the Complainant with a written request to provide relevant information or to otherwise proceed with the complaint; (2) the request included a notice of the proposed dismissal for failure to respond within fifteen days of receipt of the request; and (3) the Complainant either fails to respond to the request within fifteen days of receipt or the Complainant's response does not address the Agency's request. The Commission has held that regulation is applicable, however, only in cases where there is a clear record of delay or contumacious conduct by Complainant. See Card v. U. S. Postal Serv., EEOC Request No. 05970095 (April 23, 1998); Anderson v. U. S. Postal Serv., EEOC Request No. 05940850 (February 24, 1995). In the instant case, there is insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct. We acknowledge that the record contains a copy of an affidavit request for Complainant dated August 20, 2020. We further acknowledge that the affidavit request provided that failure to timely respond to the affidavit request (15 days from receipt) could result in the dismissal of the formal complaint. However, the record contains email correspondence between Complainant and the EEO Investigator in December 2020. The email correspondence reflects that Complainant was having difficulty in obtaining authorization from the Agency for official time in order to complete the affidavit request. 3 2021003492 Moreover, the Agency has not shown that Complainant’s complaint could not be adjudicated without Complainant’s response to the affidavit. The pre-complaint documents and formal complaint set forth the bases on which Complainant alleges discrimination, the specific actions he believes were discriminatory, the management officials who took those alleged actions, and the corrective action sought. Moreover, the EEO Investigator obtained affidavits from management officials involved in the claims at issue. Thus, we determine that the Agency has sufficient information to adjudicate the case. Therefore, we find that the Agency improperly dismissed the complaint for failure to cooperate. Nevertheless, we advise Complainant to cooperate with the Agency in the continued processing of his formal complaint, or face future dismissal of this matter if he does not do so. In addition, we remind the Agency that 29 C.F.R. § 1614.605(b) provides, in pertinent part, that a complainant should have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information. In addition, EEOC Management Directive for 29 C.F.R. Part 1614 EEO MD-110 Ch. 6 (VII)(C)(5) (rev. Aug. 2015) provides, in relevant part, that agencies must inform complainants who may need official time of the process and how to claim or request official time. Accordingly, we REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to resume processing the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq.2 The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2 Because there is an outstanding issue concerning Complainant’s entitlement to official time to complete his affidavit during the investigation, the Agency should resolve the official time matter and provide Complainant with another opportunity to provide an affidavit to the EEO Investigator. 4 2021003492 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. 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. 5 2021003492 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). 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. 6 2021003492 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 July 15, 2021 Date