0120161550
02-28-2018
Samual C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Samual C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161550
Agency No. 4G720007915
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 1, 2016, concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01/O at the Agency's Park Hill Station in North Little Rock, Arkansas.
On October 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and age (48) when on July 27, 2015 and August 3, 2015, he was informed that he had not been selected for two Supervisor, Customer Service positions (Southside and Westside locations).
The Agency contends that the investigative file and accompanying right to request a hearing before an Equal Employment Opportunity Administrative Judge (AJ) was delivered to Complainant's correct mailing address on December 18, 2015. After Complainant did not request a hearing within 30 days of this date, it issued its March 1, 2016 FAD, finding no discrimination. On March 31, 2016, an AJ denied Complainant's March 3, 2016 hearing request because the Agency already issued a FAD, depriving the AJ of jurisdiction. Complainant filed the instant appeal on March 8, 2016.
Complainant contends that he was deprived of his right to a hearing because the Agency did not mail his hearing request rights to his home address, and he wants a hearing. He also argues the merits of his case.
ANALYSIS AND FINDINGS
The Commission has stated that where there is an issue of timeliness, an Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. Ciera v. Soc. Sec. Admin., EEOC Appeal No. 0120161197 (May 19, 2016). EEOC Regulation 29 C.F.R. � 1614.108(f) & (g) requires the Agency to notify the complainant of the right to request a hearing. Complainant argues that the right to request a hearing notice was improperly not sent to his home address. The Agency contends that Complainant's argument is both inaccurate and misleading.
Pointing to the cover letter the Agency contract equal employment opportunity (EEO) investigator used when providing the investigative report to the Agency, the Agency argues that the investigator used Complainant's P.O Box as his address, and his official personnel file (OPF) lists his address as his P.O Box. Complainant counters that prior to the transmittal of the report of investigation (with accompanying hearing rights) being sent to him, the Agency in the EEO process communicated with him at his home address. The record reflects that Complainant is correct. The Agency sent Complainant his notice of right to file a complaint, the letter accepting his complaint, and the letter identifying the EEO investigator in September and October 2015 to Complainant's home address. Significantly, Complainant identified his home address as his address to the EEO counselor and in his formal complaint. In transmitting Complainant the investigative file with the accompanying right to request a hearing, the Agency did not use the address he identified as his address of record for the EEO process.
The Agency argues that the Request for Hearing Form Complainant used contains the same pagination at the bottom of the page as the blank Request for Hearing Form sent to him with the investigative file. The Agency argues this shows that Complainant received the investigative file (with accompanying hearing rights) when it was originally sent on December 15, 2015, to his P.O Box. But the Right to Request a Hearing Form was also sent to the Complainant's non-attorney representative, who may well have provided Complainant the hearing form later. Moreover, while the Agency submits delivery tracking information for the investigative file with hearing rights sent to Complainant's P.O. Box, the tracking does not show it was ever picked up by Complainant. The Agency also contends that since it sent the FAD to Complainant's P.O. Box and he timely appealed, this shows he received mail at his P.O. Box which he acted upon. But this is irrelevant to whether Complainant in December 2015 picked up the investigative file with accompanying hearing rights sent to his P.O Box. Further, the FAD was also sent to Complainant's non-attorney representative, who may have promptly supplied it to Complainant.
Based on the above, we find that the Agency has not met its burden of showing Complainant failed to timely request a hearing. Accordingly, the FAD is VACATED, and the Agency shall comply with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision is issued, the Agency shall request a hearing on behalf of Complainant with the appropriate EEOC Hearings Unit with a brief explanation for doing so, and include a copy of this decision, as well as the complaint file. Thereafter, the Hearings Unit shall process the hearing request in accordance with 29 C.F.R. � 1614.109.
A copy of the hearing request and accompanying letter of explanation must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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).
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
February 28, 2018
__________________
Date
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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