Saran R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120171493 (E.E.O.C. Nov. 9, 2018)

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

Saran R.,1
Complainant,

v.

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

Appeal No. 0120171493

Agency No. 4J-460-0070-16

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 11, 2017, finding that she had not proven
her claim 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.

The Agency employed Complainant as a Rural Carrier Associate at the Post Office in Carmel,
Indiana. On September 8, 2016, Complainant filed a formal complaint in which she alleged that
the Postmaster and two Customer Service Supervisors subjected her to harassment because of her
race (African-American) which culminated in her termination on July 13, 2016. The Agency
accepted the complaint, conducted an investigation, and thereafter issued a final decision in which
it found that Complainant failed to prove her claim of discriminatory harassment.

In its decision, the Agency noted that a copy of the investigative report had been transmitted to
Complainant on December 23, 2016, and that following Complainant’s receipt of that report, she
was given thirty days within which to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge. The Agency stated that it was issuing its final decision in
accordance with 29 C.F.R. § 1614.110(b) because Complainant had failed to request either a
hearing or a final agency decision without 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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On appeal, Complainant contends that she did request a hearing during the investigation of her
complaint and that she was never sent any paperwork to move forward with that request, which
she contends she requested over the telephone. She stated, “I would like to appeal the final
decision due to the fact that I requested a formal hearing.”

Emails from Complainant to the individuals at the Agency dated September 15, 2016 and October
14, 2016, indicated that Complainant had moved on September 16, 2016; that she had notified the
Agency of her move on September 15, 2016; and that as of October 14, 2016, she was still
receiving correspondence concerning her complaint at her old address. The transmittal letter for
the investigative report was dated December 23, 2016 and was given a USPS tracking number.
The tracking documentation shows that the package was sent to Complainant’s previous address.
Investigative Report (IR) 1-3.

In its letter to the Commission dated April 25, 2017 transmitting the case file to our Office of
Federal Operations, the Agency noted Complainant’s contention that she had requested a hearing.
The Agency responded that the file is void of any such hearing request. The Agency also noted
that Complainant had stated that she had made a hearing request over the telephone and pointed
out that there are no provisions in the Commission’s regulations for requesting hearings by phone.
The Agency further noted that Complainant was advised several times that requests for a hearing
had to be in writing. IR 53.

The Agency correctly points out that there is no mechanism in our regulations for a telephonic
hearing request. When a complainant receives notice of her right to request a hearing, she may do
so by submitting a written request for the hearing directly to the Commission’s office indicated in
the Agency’s acknowledgement letter. 29 C.F.R. § 1614.108(h). However, what the Agency
characterized as Complainant’s hearing request by telephone was actually Complainant’s attempt
to obtain the paperwork necessary to file a written request for a hearing, paperwork that she
maintains she never received. The Agency thus mischaracterizes Complainant’s efforts to request
a hearing in writing as a telephonic request.

While Complainant has the ultimate burden to prove her claim on the merits, the burden is on the
Agency to show that it complied with the complaint-processing requirements prescribed in 29
C.F.R. Part 1614. See e.g. Louise S. v. Soc. Sec. Admin., EEOC Appeal No. 0120161705 (Jan. 4,
2017) (where timeliness is an issue, agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness); Adams v. Dep’t of Homeland
Sec., EEOC Appeal No. 0120054463 (Aug. 31, 2007) (the agency has the burden of providing
evidence and/or proof to support its final decisions); Kelly v. U.S. Postal Serv., EEOC Request
No. 05A00985 (Sept. 26, 2002); Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan.
14, 1993); Gens v. Dep’t of Def., EEOC Request No. 05910837 (Jan. 31, 1992). The tracking
number and the presence of Complainant’s former address on the December 23, 2016 transmittal
letter for the investigative report establishes that the Agency had indeed sent the investigative file
to her former address. In order to establish that Complainant had received the notice of her right
to request a hearing, the Agency would have to show that the investigative report had been
forwarded from Complainant’s old address to her new address. This the Agency has not done.
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Based on a thorough review of the record and the contentions on appeal, we find that the Agency
failed to prove that Complainant received notice of her right to request a hearing. Accordingly,
we VACATE the Agency's final decision and REMAND the matter for further processing in
accordance with our order below.

ORDER

The Agency shall submit to the Hearings Unit of the EEOC Indianapolis District Office a request
for a hearing on the remanded complaint, along with a copy of this decision, within 30 calendar
days of the date of this decision. The Agency is directed to submit a copy of the complaint file to
the EEOC Hearings Unit within 30 calendar days of the date this decision. The Agency shall
provide written notification to the Compliance Officer at the address set forth below that the
request and complaint file have been transmitted to the Hearings Unit. 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.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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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.
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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

November 9, 2018
Date