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

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020002881 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002881 Agency No. 1G-321-0041-19 DECISION 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 January 10, 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. For the following reasons, the Commission VACATES the Agency’s final decision. ISSUE PRESENTED The issue presented concerns whether the Agency’s issuance of a final decision was appropriate. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Distribution Operations Manager, EAS-19, at the Agency’s Processing and Distribution Center in Macon, Georgia. 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. 2020002881 2 On May 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian/European), national origin (European American), color (white), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when: 1. Since March 6, 2019, she has been: a. sent harassing text messages and b. denied assistance. 2. On March 6-7, 2019, her request for sick leave was denied and her time was charged to leave without pay (LWOP); 3. On or about March 11, 2019, March 13, 2019, and May 10, 2019, and other dates to be specified, she was subjected to an investigative interview; 4. On March 30, 2019, after being accused of delaying mail and falsifying documents, she was placed in a non-duty administrative leave status; and 5. On April 3, 2019, she was issued a Notice of Emergency Placement Off Duty for alleged unauthorized delay of mail and inaccurate and/or false reporting of delayed mail volume. At the conclusion of the investigation, on October 29, 2019, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On or around November 23, 2019, Complainant filed a hearing request, which the Commission’s Atlanta District Office docketed on January 16, 2020, as EEOC No. 410-2020-00198X. While Complainant’s hearing request was pending, the Agency issued a final decision on January 10, 2020, pursuant to 29 C.F.R. § 1614.110(b), based on the belief that Complainant failed to respond to the Agency’s notice of right to request a hearing. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant then filed an appeal with the Commission on February 26, 2020, seeking review of the Agency’s final decision. In appealing the Agency’s final decision, Complainant submitted a copy of the January 16, 2020, hearing request acknowledgement that she previously received from the Commission’s Atlanta District Office along with her Notice of Appeal/Petition. Approximately six months after Complainant filed her appeal with the Commission, an AJ with the Commission’s Atlanta District Office held an initial conference to discuss the case. During the initial conference, the parties informed the AJ that Complainant had appealed the Agency’s January 10, 2020, final decision with the Commission. 2020002881 3 In light of that disclosure, the AJ dismissed the complaint pursuant to 29 C.F.R. § 1614.109(b) and § 1614.107(a)(1), as Complainant’s appeal to the Commission had divested the AJ of jurisdiction. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency improperly issued a final decision, as she filed a timely hearing request on November 23, 2019, via First-Class mail. As such, she requests that the Commission vacate the Agency’s final decision and allow the matter to proceed to a hearing. The Agency did not file any contentions in response to Complainant’s appeal. ANALYSIS AND FINDINGS Given that Complainant has timely requested a hearing, we will vacate the Agency’s final decision and remand the matter for further processing in accordance with 29 C.F.R. § 1614.109. See 29 C.F.R. § 1614.108(f); see also Samual C. v. U.S. Postal Serv., EEOC Appeal No. 0120161550 (Feb. 28, 2018); and Alex L. v. Dep’t of Health and Human Servs., EEOC Appeal No. 2019005139 (Sept. 3, 2020). CONCLUSION We VACATE the Agency’s final decision and REMAND the matter for further processing. The Agency shall comply with the Order herein. ORDER Within fifteen (15) calendar days of the date this decision is issued, the Agency shall inform the Hearings Unit of the EEOC’s Atlanta District Office in writing that the Agency’s January 10, 2020, decision has been vacated, and that the matter is to be re-docketed by the hearing process. A copy of the notification shall be sent to the Compliance Officer as referenced herein. 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. 2020002881 4 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. 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. 2020002881 5 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. 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. 2020002881 6 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, Director Office of Federal Operations September 2, 2021 Date