[Redacted], Stacie D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020002925 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacie D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020002925 Agency No. 1F-901-0161-19 DECISION On March 28, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's March 25, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the matter for a hearing in accordance with our order below. Complainant worked as a Mail Handler, M-04/P, at the Agency’s Processing and Distribution Center in Los Angeles, California. On September 20, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African- American), sex (female), age (54), and reprisal (prior protected EEO activity) when: 1. On July 11, 2019, Complainant was subjected to an investigative interview in which it was alleged that she delayed mail; 2. On August 12, 2019, Complainant’s supervisor displayed favoritism when Asian employees were allowed to take extended breaks and lunches; and 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. 2020002925 2 3. On September 2, 4, and 24, 2019, and other dates, Complainant’s supervisor threatened and bullied her. The Agency reported that on January 3, 2020, it transmitted a copy of the investigative report along with notice of her right to request a hearing to Complainant and her non-attorney representative. The Agency issued its final decision on March 25, 2020, after determining that Complainant had failed to request either a hearing or a final agency decision. In the decision, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. On appeal, Complainant contends that neither she nor her representative had ever received a copy of the investigative report and notice of right to request a hearing. She states: “I am confident that after a thorough and concise review of the entire investigative report without prejudice it will be determined that I have proved my case well beyond a reasonable doubt.” The record includes copies of the priority mailing envelopes in which copies of the report and notice of hearing rights were sent to Complainant and her representative. Complainant’s copy was assigned a tracking number ending with the digit sequence “3724.” The package was sent to the same address for Complainant that we have in our records. However, at the bottom of the document is a copy of a label dated January 24, 2020 and marked “Return to Sender - Attempted not known - Unable to forward.” The representative’s package was assigned a tracking number ending in “3717.” There is no “Return to Sender” on the representative’s mailing envelope. A fair reading of the record reveals that Complainant wished to request a hearing. Under the Commission’s complaint-processing regulations the Agency has the burden to show that it had sent Complainant the notice of her right to a hearing. Mindy W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160370 (April 11, 2018) citing Man H. v. Dep’t of Veterans Affairs, EEOC Request No. 0520160487 (Feb. 16, 2017) & Linn A. v. Social Sec. Admin., EEOC Appeal No. 0120161923 (Aug 19, 2016) (The agency has the burden of proof to support its dismissal of a complaint on procedural grounds). While the Agency did provide a tracking number and a priority mailing envelope showing that it had attempted to transmit the investigative report and notice of hearing rights to Complainant’s address of record, it provides no explanation as to why Complainant’s package was returned nor whether there was any attempt to re-transmit. Nor can the Agency rely on the assumption that Complainant’s representative received the package. When a complainant's representative is not an attorney, receipt of a document by the non-attorney representative is insufficient to establish constructive notice to the complainant. Carrigan v. U.S. Postal Serv., EEOC Request No. 05950264 (Aug. 31, 1995). 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. Therefore, based on a thorough review of the record and the contentions on appeal, we VACATE the Agency’s final decision and REMAND this matter for a hearing in accordance with our order below. 2020002925 3 ORDER The Agency shall take the following remedial action within 30 calendar days of the date this decision is issued: 1. The Agency shall issue to Complainant and her representative a copy of the investigative file; and 2. The Agency shall submit a request for a hearing on behalf of Complainant to the Hearings Unit of the Commission’s District Office in Los Angeles, California. A complete copy of the complaint file, as well as a copy of this decision, shall accompany the hearing request. Thereafter, the Administrative Judge shall 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. 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. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020002925 4 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. 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). 2020002925 5 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation