Renee S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

2019003132 (E.E.O.C. Dec. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Renee S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 2019003132

Hearing No. 410-2019-00259X

Agency No. 1G-321-0039-18

DECISION

On November 5, 2018, Complainant requested a hearing before the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.109. On
February 4, 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
January 11, 2019, final decision (FAD) 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.

ISSUES PRESENTED

The issue presented is whether the Agency’s decision finding no discrimination should be
vacated because Complainant had filed a timely request for a hearing.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center facility in Macon, Georgia.
Complainant worked for the Agency for approximately 40 years and she is now deceased.

On July 7, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), age (65), and in reprisal for
prior protected EEO activity under Title VII when:

1. On every Friday from March 9, 2018 through July 29, 2018 Complainant was
bypassed for overtime on her non-scheduled day off; and

2. On June 23, 2018 Complainant was bypassed for overtime on her scheduled day off.

At the conclusion of the investigation, on October 29, 2018, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing, which was received
by the EEOC on November 5, 2018. Following Complainant’s timely request for hearing, the
Agency issued a FAD on January 11, 2019. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and issued a decision, ordering summary judgment
for the Agency, without a hearing on September 27, 2019.

The Agency was required to issue a final order within forty days of receipt of the AJ’s decision.
On November 11, 2019, the AJ’s decision finding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to
29 C.F.R. § 1614.109(f)(3)(i). The record is unclear as to whether the Agency has issued a new
final order following the AJ’s decision.

CONTENTIONS ON APPEAL

Neither party has appealed the order granting summary judgment.

ANALYSIS AND FINDINGS

The record establishes that Complainant was issued a copy of the report of investigation on
October 29, 2018, and that she timely requested a hearing before an AJ, received by the EEOC
on November 5, 2018. The Agency issued a FAD on January 11, 2019, which Complainant
appealed. However, the Agency did not have jurisdiction in this matter, as Complainant timely
requested a hearing, pursuant to 29 C.F.R. § 1614.109. Therefore, the Commission is vacating
the January 11, 2019 FAD. We find that Complainant’s appeal of the Agency’s January 11,
2019 FAD is premature.

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We find that Complainant’s estate should have the opportunity to appeal the Agency’s
implementation of the AJ’s September 27, 2019 decision issuing summary judgment. Therefore,
Complainant has 30 days from the date of her receipt of this decision to file a new appeal, if
Complainant’s estate so wishes to pursue the matter.

CONCLUSION

Accordingly, we VACATE the Agency’s January 11, 2019 FAD. Complainant’s estate may file
a new appeal of the Agency’s implementation of the AJ’s September 27, 2019 decision issuing
summary judgment within 30 days of receipt of this decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party. Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances prevented the timely
filing of the request. Any supporting documentation must be submitted with your 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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

December 17, 2019
Date