Violet F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 23, 20180120172934 (E.E.O.C. Oct. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172934 Hearing No. 420-2017-00225X Agency No. 1G-351-0002-16 DECISION On August 29, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final decision, dated July 28, 2017, concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND In 2009, Complainant, a Data Conversion Operator (DCO), was excessed to the Mobile Processing and Distribution Center, in Mobile, Alabama. The qualifications for the DCO position were the same as for the Maintenance Support Clerk (MSC)/Maintenance Operations Support Clerk (MOSC) positions at the Mobile P&DC. Therefore, pursuant to the Collective Bargaining Agreement, Complainant was placed on the Promotional Eligibility Register (PER) for those jobs. Complainant also made periodic written requests to be detailed to the position, when there were absences, and to receive a refresher course for the job. 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. 0120172934 2 Believing she was subjected to discrimination based on her race and age, Complainant contacted an EEO Counselor on October 7, 2015. Specifically, Complainant alleged that when she returned from a vacation, another individual (hereinafter “Employee G”) was detailed to a MOS Clerk job. According to Complainant this was a job that she had been working before her vacation, and was on the PER list. Further, after being told that she was not considered to be qualified for the position, Complainant discovered that she had been removed from the PER list.2 Prior to filing a formal complaint, the parties executed a settlement agreement to resolve the matter. The December 16, 2015 agreement provided, in relevant part, the following provision: Management officials agree that the Maintenance Operations Support Clerk (MOS)/Maintenance Support Clerk (MSC) position will not be filled until [a named Human Resources official] completes her review of [Complainant’s] qualifications for the MOS/MSC position and PER list . . . If HR [Human Resources] determines in writing and without documentation that [Complainant] does not qualify, then she will reinstate her EEO claim. The next month, HR determined that Complainant was not qualified on Exam 718.3 On February 26, 2016, Complainant alleged breach of the agreement. The Agency issued a decision, on March 31, 2016, finding it was in compliance with the settlement agreement. Complainant appealed the Agency’s determination to the Commission. In the prior decision, the Commission found that the agreement provided for the reinstatement of Complainant’s claim and remanded the case to the Agency for further processing. See Complainant v. United States Postal Service, EEOC Appeal No. 0120161711 (Oct. 7, 2016). Additionally, the Commission noted that Complainant “also raises race and age claims in connection with the Agency’s determination that she was not qualified for the position . . .[and] contends that management is trying to disqualify her for a position for which she was previously qualified in order to place a younger, Caucasian employee in the position.” See id. The Commission advised that, if Complainant had not already contacted an EEO Counselor, she could raise the new matters as a new complaint. See id. Alternatively, the Commission noted that Complainant could amend the remanded complaint to include these matters. See id. These claims are reflected in the Notice of Right to File (hereinafter “Notice”) issued to Complainant one month later, on November 10, 2016. Specifically, the Notice stated Complainant claims she was discriminated against when: “on September 26, 2015, you discovered another employee was granted a detail you requested and you discovered your name 2 A July 2010 pre-complaint counseling form and August 6, 2010 settlement agreement indicate that the parties previously addressed providing Complainant with training and placement on PER for MOS Clerk. 3 Exam 718 was the current examination for the position. Complainant was qualified on earlier examinations: Exam 710 and Exam 714. 0120172934 3 had been removed from the [PER] for [MOSC].” The Notice described an October 28, 2015 inquiry, noting that the Manager, Maintenance Operations (hereinafter “Manager”) stated there was no documentation of Complainant’s prior qualification for the MOS Clerk position examination. An “additional inquiry,” conducted on November 9, 2016, was also mentioned. During this subsequent inquiry, more than one year later, the Manager stated that Complainant was awarded the MOS Clerk position after submitting evidence of her prior qualification. Thereafter, on November 29, 2016, Complainant filed a formal complaint. In the attachment to the formal complaint, Complainant alleged that another employee was placed in the MOS Clerk position and that, following Complainant’s examination into the matter, she also discovered that her name had been removed from the PER. Moreover, Complainant described initiating the instant case and “f[ighting] for the position for the next year.” According to Complainant, when the Agency finally awarded her the position, on July 9, 2016, the Agency offered to provide her with one month of back pay if she withdrew her EEO complaint. Complainant declined, and argued that she was harmed by the initial, discriminatory, non-promotion that occurred more than one year earlier. The Agency, on January 17, 2017, issued a “Partial Acceptance/Partial Dismissal of Formal EEO Complaint”. The Agency framed the claims as follows: (1) on or about July 14, 2015, Complainant was informed that she was not qualified for the MOS Clerk position, and also had her name removed from the PER; and, (2) on July 9, 2016, Complainant was placed into the MSC position. The Agency dismissed claim (1) for untimely EEO Counselor contact, finding that Complainant’s October 7, 2015 counselor contact was 84 days after the alleged July 14, 2015 incident. The Agency found that, to the extent that Complainant could be raising a continuing harassment claim, the Agency reasoned that the one-year span between events created a “disconnect” that prevented a “homogenous harassment claim.” Instead, the Agency deemed claim (1) as a discrete act that was untimely raised with an EEO Counselor. The Agency accepted claim (2) for investigation. After an 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). Complainant timely requested a hearing but subsequently withdrew her request. The AJ remanded the complaint to the Agency for a final decision. Thereafter, on July 28, 2017, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision incorporated the earlier dismissal of claim (1) for untimely EEO Counselor contact. Regarding claim (2), the Agency stated that Complainant failed to present a prima facie case. Specifically, the Agency reasoned that because Complainant “was awarded the assignment for which she voluntarily bid . . . she was not harmed”. 0120172934 4 Complainant argued, however, that “she was not awarded such position from an earlier application and was removed from the [PER].” The Agency reiterated that these claims were dismissed. Even assuming that Complainant established a prima facie case, the Agency found that management presented a legitimate, non-discriminatory reason for its actions. Specifically, the Agency found that Complainant was the successful bidder and she could have rejected the promotion but failed to do so. In assessing whether pretext was shown, the Agency noted Complainant’s assertion that her protected bases were a factor because managers were trying to place a younger, Caucasian in the position. According to the Agency, Complainant failed to identify a comparator, acknowledging to do so “would have been nearly impossible, as she was awarded the bid assignment.” Complainant filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Claim (2) In response to Complainant’s appeal, the Agency notes that “[i]t is rare to have a complaint of discrimination filed because an employee received a promotion [,] but in this case that is exactly what happened” (emphasis added). We strongly disagree with this assessment. To wit, both the instant record and common sense dictate that this case is not about Complainant finally receiving the promotion, but rather the case addresses the earlier denial and lengthy delay in placing her in the position. We remain confused by the Agency’s determination to frame the formal complaint as it did, regarding placement in a promotion Complainant has been seeking for years, and to have an investigation conducted and decision issued on the matter. For over five years, Complainant believed she was on the PER for a MSC/MOSC position. According to the formal complaint, in mid-July 2015, Complainant returned from vacation to find that Employee G was in the MOS Clerk position, that Complainant was on the PER list for. 0120172934 5 When Complainant asked why she was not promoted, she was told that she was not qualified.4 Thereafter, on September 26, 2015, Complainant discovered that the PER had been modified – her name had been removed.5 Complainant stated in her formal complaint that the Agency explained that Employee G had taken the current qualifying test (Exam 718) and she had not, so Complainant’s name was removed from the PER. She believed, however, that individuals outside of her protected classes remained on the PER even without the most current examination. This alleged discrimination, the non-selection for the promotion and removal from PER, was the substance and essence of Complainant’s complaint. Quite plainly, her eventual placement in the desired position was not the subject of the formal complaint. We find the Agency to be disingenuous in creating, processing, and rendering a decision regarding claim (2). Therefore, we VACATE the Agency’s final decision on the merits of what it characterized as claim (2), which was never intended by Complainant to be part of her complaint. Claim (1) However, the Agency did include the essence of Complainant’s actual claim in what it labeled claim (1). During the time the case was pending before the AJ, Complainant’s representative argued that the dismissal of claim (1) was improper as Complainant mistakenly wrote the incorrect date (“July 2015”) on the formal complaint form. Instead, asserted Complainant, the proper date was September 25, 2015. It was on this date (September 2015) that she learned that her name had been removed from the PER. In support of her assertion, Complainant notes that all other documentation reflects the September 25, 2015 date. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. 4 It is unclear from the record whether placement on the PER requires one to first be qualified for the position. If this were the case, the Agency’s proffered reason could be considered pretextual (i.e. Complainant’s initial placement on the list established that she was qualified). We note that in a document dated December 13, 2010, signed by the Manger, Maintenance, the Agency stated, “Employees rated under the new EMSS will appear below employees rated under the old system.” 5 Complainant noted in her complaint that this was not the first time she had encountered such problems, stating that she was placed on the PER as the result of an earlier EEO complaint. 0120172934 6 EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. A review of the instant record reflects that Complainant’s request for counseling, the Notice, and Counselor’s Report all identify the September 2015 date for the alleged discrimination. The Agency’s dismissal of claim (1) appears to rely solely on the date entered on the formal complaint, which Complainant contends was done in error. Therefore, we find that the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Moreover, we find under the instant circumstances, the Commission shall exercise its discretion to extend the time limit. The dismissal of claim (1) was improper and is hereby remanded to the Agency for further processing. On remand, both Complainant’s claims that she was discriminatorily not selected for the 2015 promotion, as well as her allegedly discriminatory removal from PER, shall be processed. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency’s decision is hereby REVERSED and the matter is REMANDED to the Agency for further processing from the point processing ceased, in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim (that Complainant was discriminatorily not selected for the 2015 promotion, and removed from PER) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 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. 0120172934 7 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. 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. 0120172934 8 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. 0120172934 9 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 October 23, 2018 Date Copy with citationCopy as parenthetical citation