[Redacted], Shena O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 26, 2021

Appeal No. 2021000152 (E.E.O.C. Jan. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shena O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000152 Agency No. 4C-370-0022-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 6, 2020, dismissing her complaint of 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. We VACATE the Agency’s decision and REMAND the matter for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Lead Sales & Services Associate at the Knoxville-South Station in Knoxville, Tennessee. On February 15, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability2, and in reprisal for prior protected EEO activity when since September 25, 2019, she had been subjected to a hostile work environment when: 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 In her affidavit, Complainant stated she had hernia-intestine complications, and a protruding bone in her foot. 2021000152 2 1. On February 5 and April 3, 2019, she was given an investigative interview and Letter of Warning (LOW); 2. On December 23, 2019, her backpay processing was delayed; 3. On January 3, 2020, a postal inspector took pictures of her and her customers; 4. On November 8, 2019, she was issued a LOW; 5. On November 18, 19, 2019, she was told she could not park where others have been allowed to; 6. On December 2, 9, 11, 2019, she was made to work in an unsafe area; 7. On December 2, 9, 2019, management yelled at her; 8. On a date to be specified, management locked the doors on her when she went outside for her break;3 and 9. On dates to be specified, her badge did not have her Lead Clerk title on it and she was not permitted to perform her Lead Clerk duties.4 On March 5, 2020, the Agency accepted claims (4) - (9) for processing. The Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency dismissed claims (2) and (3) for failure to state a claim. The Agency proceeded to investigate the accepted claims. The Agency asserted that on June 16, 2020, at the conclusion of the investigation, it provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or a final Agency decision within 30 days of receipt of the notice. The Agency presumed that Complainant had received the above referenced June 16, 2020 notice but did not respond. The Agency then issued a final decision on August 6, 2020, finding no discrimination. On appeal, Complainant contends that she never received a copy of the report of investigation or the hearing request form. Complainant requests that she receive a hearing on her complaint before an AJ. 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. 3 In her affidavit, Complainant stated on November 21, 2019, management locked the doors on her when she went outside for her break. 4 In her affidavit, Complainant stated that from July 2018 until January 2020, her badge did not have her Lead Clerk title on it, and she was not permitted to perform the Lead Clerk duties. 2021000152 3 The record contains a copy of the June 16, 2020, Transmittal of Investigative File letter indicating USPS Tracking # 2318 2200 0000 2875 1122, the Request for Hearing form, and the ROI. The record does not, however, contain evidence indicating that the ROI was actually delivered to Complainant. As noted above, Complainant maintained that she did not receive the ROI or notice of her right to request a hearing. Moreover, we note that the record contains a copy of the envelope for USPS Tracking # 2318 2200 0000 2875 1122 with a stamp “Return to Sender/Unclaimed/Unable to Forward.” The Commission finds the Agency has not refuted Complainant’s contention that she did not receive the ROI and notice of right to request a hearing. Given that Complainant has already indicated on appeal that she desires to have a hearing in this case, the Commission will direct the Agency to submit a copy of the complaint file, including the ROI, to the Hearing Unit of the appropriate district/field office of the Commission. CONCLUSION Accordingly, it is the decision of the Commission to VACATE the Agency’s decision and REMAND the complaint to the Agency for further processing in accordance with the Order herein. ORDER The Agency is directed to provide Complainant with a copy of the ROI, and to submit Complainant’s request for a hearing and a copy of the complaint file to the Hearings Unit of the appropriate district/field office within 30 days of the date this decision is issued. 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. 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). 2021000152 4 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. 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. 2021000152 5 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. 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 January 26, 2021 Date