[Redacted], Starr R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020000683 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Starr R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020000683 Agency No. 1F-901-0215-18 DECISION On September 30, 2019, 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 August 29, 2019 final decision concerning his 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Postal Support Employee Mail Processing Clerk in Los Angeles, California. On December 27, 2018, Complainant filed a formal complaint based on sex and disability, claiming that he was subjected to unlawful discrimination. The Agency accepted the formal 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. 2020000683 2 Complainant alleged he was subjected to a hostile work environment when: 1. Starting around July 2018, and continuing, [his] supervisor’s acts have made [him] uncomfortable, humiliated [him], and tested [his] character, including using profanity towards [him]; 2. Beginning in July 2018, and continuing, [he has ] been moved from[his] regular assignment while junior employees remained in the unit; 3. [His] supervisor did not make sure that [his] time was properly input, including but not limited to, the week of June 23-29, 2018; 4. On July 23, 2018, [his] supervisor made sexually inappropriate comments to describe a machine he wanted [him] to work on; 5. On August 8, 2018, [he was] issued a Letter of Warning; 6. On August 21, 2018, [his] supervisor attempted to change [his] schedule to have [him] work on Sundays. Upon completion of the investigation, the Agency provided Complainant with a copy of the report of investigation and of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant filed a hearing request which was received by the Los Angeles District Office on May 15, 2019. On August 29, 2019, the Agency issued a final decision finding no discrimination. On October 22, 2019, the Agency filed a Motion to Dismiss asserting Complainant’s hearing request was untimely and the Agency had issued a final decision in the matter. Complainant filed a response dated October 25, 2019. On October 31, 2019, the Agency filed a Reply. On January 23, 2020, the AJ issued an Order Granting the Agency’s Motion to Dismiss. Therein, the AJ set forth that the Agency transmitted Complainant the report of investigation (ROI) on May 7, 2019. The AJ further set forth that: On May 15, 2019, this District Office received a copy of Complainant’s Request for Hearing Form via US mail. In his Response, Complainant submits a Declaration Under Penalty of Perjury that he submitted a copy of his request for a hearing to the Agency. However, the Agency asserts it never received such a request and that on August 29, 2019,…it issued a FAD…According to the Agency, Complainant did not file an appeal to OFO, and in his Response, Complainant does not address the FAD that he received or address whether or not he filed an appeal. The record also reveals that rather than contacting the Agency upon receipt of FAD, or appealing his complaint with OFO, it appears that on 2020000683 3 September 25, 2019, after Complainant received a copy of the FAD issued on his complaint, he filed a request for a hearing via the online Public Portal…I do no find Complainant’s Declaration and unsupported assertion that his mail was lost to be compelling, particularly in light of the fact that the record demonstrates Complainant used tracking numbers on the other occasions he sent mail to the Agency. Complainant submits no other evidence of tracking, or proof otherwise, that he did in fact mail his hearing form [to the Agency].” AJ Decision 2-3. Based on the foregoing, the AJ found Complainant’s May 2019 hearing request to be deficient and his September 2019 hearing request to be untimely. AJ Decision at 3. The instant appeal followed. On appeal, Complainant attaches a copy of his Response to the Agency’s Motion to Dismiss. Therein, Complainant asserts that he mailed his hearing request to the EEOC and the Agency on May 13, 2019. Complainant asserts his hearing request was timely, because he received the ROI and his notice of right to elect a hearing on May 10, 2019. Complainant attaches to his appeal a copy of his declaration under penalty of perjury. Therein, he asserts that he mailed a copy of his hearing request to the Agency on May 13, 2019. Complainant asserts his hearing request to the Agency may have been lost in the mail. In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency asserts that Complainant received its August 29, 2019 final decision on September 3, 2019 and the Agency did not receive a timely copy of Complainant’s appeal. Thus, the Agency asserts the final decision is binding on Complainant. The Agency further asserts that Complainant did not provide proof that his hearing request was served on the Agency in a timely manner. ANALYSIS AND FINDINGS The record reflects that Complainant and his representative received a notice of right to request a hearing on May 10, 2019.2 The Request for Hearing Form informed Complainant he had 30 days from the date of its receipt to request a hearing or a final decision. The Request Form also set forth that failure to provide a copy of the hearing request to the Agency could result in the Agency issuing a final decision and Complainant’s loss of his right to a hearing. It is undisputed that Complainant timely sent his request for a hearing to the EEOC’s Los Angeles District Office via mail which was received by the EEOC on May 15, 2019 (according to the AJ’s Order of Dismissal). Attached to the Agency’s Motion to Dismiss is a Notice of Receipt of Hearing Request to the Agency from EEOC’s Los Angeles District Office via email dated September 25, 2019, informing the Agency that Complainant requested a hearing. In the intervening time, the Agency issued a final decision on the merits on August 29, 2019. 2 Complainant is represented by a non-attorney representative. 2020000683 4 Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” See Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has burden of providing evidence and/or proof to support its final decision.” See also Gens v. Dep’t of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). Complainant, in response to the Agency’s Motion to Dismiss, expressly asserted that he sent a copy of the hearing request to the Agency via regular mail on May 13, 2019, the same date he sent the hearing request to the Commission. The Agency, however, has denied, receiving a copy of the hearing request from Complainant and issued its August 29, 2019 final decision. It asserts that it did not learn of the hearing request until the Commission’s email on September 25, 2019. While the Agency asserted, in its Motion to Dismiss, that it did not receive a copy of the hearing request from Complainant, the record does not contain any evidence to support this claim, such as an affidavit from an Agency official with the National EEO Investigative Services (the entity that was designated by the Agency to receive a copy of Complainant’s hearing request) attesting to the fact no hearing request from Complainant was received during the relevant time period. We find, given these specific circumstances, that the Agency did not meet its burden of providing any evidence to support its claim that Complainant did not timely submit a copy of his hearing request to the Agency.3 See Val L. v. U.S. Postal Serv, EEOC Request No. 2020003599 (April 5, 2021) (vacating the Agency’s final order implementing the AJ’s dismissal of hearing request in which Agency asserted Complainant did not serve a copy of the hearing request on the Agency and Complainant expressly asserted he mailed a copy to the Agency on the same day he filed it with the EEOC). The AJ, in his Order of Dismissal, further asserts that Complainant did not file an appeal with EEOC from the August 29, 2019 final decision. We find that Complainant was not required to file an appeal because he had already filed a timely hearing request with the Commission’s Los Angeles District Office in May 2019. 3 In reaching this conclusion, we distinguish this case from our decision in Mitchell H. v. U.S. Postal Serv., EEOC Request No. 2020001624 (Aug. 11, 2020), where we affirmed an AJ’s dismissal of a hearing because the complainant failed to serve the Agency with a copy of the hearing request. In Mitchell H., unlike the present case, the complainant did not affirmatively assert that he had, in fact, mailed a timely copy of the hearing request to the agency. Instead, it appears he claimed to have notified the agency, in January 2018, that he was requesting a hearing months before he actually filed a hearing request with the EEOC in May 2018. This would not have been in compliance with the requirements of 29 C.F.R. § 1614.108(h). Here, Complainant has represented that he mailed the Agency a copy of the hearing request on the same day he filed it with the EEOC Hearings Unit as required by 29 C.F.R. § 1614.108(h). 2020000683 5 Nevertheless, Commission records reflect that he timely filed an appeal with OFO on September 30, 2019, after having received a copy of the final decision on September 3, 2019. To the extent the Agency asserts Complainant did not serve a copy of the appeal on the Agency, we find this to be harmless error. The Agency was notified of the appeal by the Commission and the record reflects Complainant served a copy of his appeal brief on the Agency. The Agency had an opportunity to submit an opposition brief which we considered herein. As such, we find that the Agency has not been harmed by Complainant’s procedural error. See Holderman v. Dep’t of Agriculture, EEOC Request No. 05930875 (June 2, 1994). Accordingly, we VACATE the AJ’s dismissal of Complainant’s hearing request, as well as the Agency’s August 29, 2019 final decision finding no discrimination. We REMAND the entire complaint to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is directed to submit a renewed hearing request on behalf of Complainant, as well as the complaint file and a copy of this decision, to the Hearings Unit of the EEOC’s Los Angeles District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer as set forth below in the paragraph entitled “Implementation of the Commission’s Decision” that the complaint file has been transmitted to the Hearings Unit. Thereafter, the AJ shall process 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). 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. 2020000683 6 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. 2020000683 7 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 June 21, 2021 Date