U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lacey T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120180805
Agency No. 4E-800-0064-17
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 December 4, 2017, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the
Agency’s final decision.
BACKGROUND
Complainant worked as a Probationary Rural Carrier Associate at the Post Office in Erie,
Colorado. On May 30, 2017, Complainant filed an EEO complaint in which she alleged that the
Agency discriminated against her on the basis of disability (shoulder injury) when:
1. On January 7, 2017, she was denied Light Duty; and
2. On January 17, 2017, she was issued a Notice of Removal, effective upon receipt.
Complainant identified two Customer Services Supervisors (S1a and S1b) and the Postmaster
(PM) as the responsible management officials.
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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At the conclusion of the investigation, 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) in the form of a compact disc (CD).
Complainant contends that she was unaware of the contents of the CD until much later. Operating
under the assumption that Complainant did not request a hearing within the time frame provided
in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the correspondence for the investigative report was
mislabeled and sent in an unusual format. Complainant claims that she did not know that the
investigative report was included in the CD that the Agency sent her as it was only labeled “Privacy
Act Data” and there was no indication that the investigative report was contained on it.
Complainant contends that she received a great deal of paperwork from the Agency and had
assumed that the information contained on the CD was privacy policy information. Based on this
belief, Complainant states that she set the CD aside and did not learn that it was the investigative
report until she received the final agency decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.108(f) provides in relevant part that an agency shall provide
the complainant with a copy of the investigative file, and shall notify the complainant, that within
30 days of receipt of the investigative file, the complainant has the right to request a hearing and
decision from an Administrative Judge or may request an immediate final decision pursuant to 29
C.F.R. § 1614.110 from the agency.
As noted above, Complainant contends that because the investigative report was delivered as a CD
with the label “Privacy Act Data” on the envelope, she had no notice that the CD contained the
investigative report. Complainant noted that she had received all other correspondence from the
Agency in paper form. The situation Complainant presents is virtually identical to that presented
in Sonny M. v. U.S. Postal Serv., EEOC Appeal No. 0120180907 (June 11, 2019). The
complainant in Sonny M. also received the investigative report on his complaint as a CD labeled
with the agency’s case number. In vacating the agency’s decision, we noted that the complainant
in Sonny M. had no notice that the investigative file and notice of right to request a hearing would
arrive as a CD and that there was nothing in the certified mailing package to put the complainant
on notice that those items were contained therein. In the instant case, the record does include a
document entitled, “Transmittal of the Investigative File” addressed to Complainant and dated
September 21, 2017. The notice includes a tracking number, 9914-9014-9645-1606-8208-19, that
corresponds to Agency No. 4E-800-0064-17. As with Sonny M., however, the record contains no
evidence showing that this notice was sent to Complainant in any form other than the CD, and
consequently, the Agency has not been able to show that Complainant had actually seen this notice.
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The Commission has repeatedly stated that “the agency has the burden of providing evidence
and/or proof to support its final decisions.” Silas T. v. Dep’t of Veterans Affairs, EEOC Appeal
No. 0120170904 (Nov. 13, 2018) citing Ericson v. Dept. of the Army, EEOC Request No.
05920623 (Jan. 14, 1993). As such, the Commission finds that the Agency has not refuted
Complainant's contention that she did not properly receive the report of investigation and notice
of right to request a hearing. We will therefore remand the matter so that Complainant may be
given the opportunity to request a hearing before an EEOC AJ.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency’s final agency decision is VACATED. The matter is
REMANDED for further processing consistent with this decision and the Order below.
ORDER
Within 30 calendar days of the date this decision becomes final, the Agency shall issue to
Complainant a copy of the report of investigation for Agency No. 4E-800-0064-17 and shall notify
Complainant of her right to request a hearing and decision from an administrative judge or to
request an immediate final decision from the Agency. If Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within 60 days of receipt of
Complainant's request.
If Complainant requests a hearing, the Agency shall provide the Hearings Unit of the appropriate
EEOC Field Office with a copy of this decision along with a copy of the complaint file.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
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.
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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 CFR § 1614.503(f) for enforcement by that agency.
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.
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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
July 12, 2019
Date
