Casie S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 18, 20180120161412 (E.E.O.C. Apr. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Casie S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120161412 Agency No. 1E-641-0020-15 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 9, 2016, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission VACATES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodial, PS-06, at the Agency’s Kansas City, Missouri Processing and Distribution Center. On July 16, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior protected EEO activity when: Since January 1, 2015 and ongoing, management denied her reasonable accommodation 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. 0120161412 2 request when it denied light duty for her physical restrictions.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and Notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The Notice was dated November 23, 2015, and received by Complainant and her attorney on November 25, 2015. On February 9, 2016, the Agency issued a final decision on the merits of the complaint, finding no discrimination. Therein, the Agency noted that, following receipt of the ROI, Complainant had 30 days within which to request a hearing before an AJ or a final Agency decision. The Agency noted, however, that as Complainant failed to request either a hearing or a final Agency decision without a hearing, it issued its decision finding no discrimination in accordance with 29 C.F.R. § 1614.110(b). On appeal, Complainant claimed that she timely requested a hearing before the Commission’s St. Louis District Office via facsimile on December 17, 2015. She states that she also sent a copy of the hearing request via facsimile to the Agency. Complainant provides evidence that successful facsimile transmissions were made to the Agency’s National EEO Investigative Services and to the EEOC’s St. Louis District Office on December 17, 2015. In addition, Complainant provides a copy of the February 23, 2016 Order Directing Agency to Produce Electronic Complaint file which states the Commission’s St. Louis District Office received Complainant’s hearing request on December 17, 2015. Complainant also provides a copy of the Commission’s March 16, 2016 Notice of Receipt, Order Directing Agency to Produce Electronic File, and Order Scheduling Initial Conference in which the St. Louis District Office acknowledged that it received a hearing request from Complainant on December 17, 2015. In response to Complainant’s appeal, the Agency states that as Complainant failed to request either a hearing or a final agency decision without a hearing, a final agency decision was issued on February 9, 2016, which fully addressed all relevant issues. The Agency acknowledges that on February 23, 2016, an EEOC AJ notified the Agency of Complainant’s December 17, 2015 request for a hearing. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.109(a) provides, in pertinent part: When a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing in accordance with this section. Upon appointment, the administrative judge shall assume full responsibility for the adjudication of the complaint, including overseeing the development of the record. 2 The Agency noted that in her affidavit, Complainant specified her disability is permanent bi- lateral knee osteoarthritis. The Agency stated she also added the bases of race (Hispanic), sex (female), and age (63) to her complaint. 0120161412 3 In the present case, there is no dispute that before the Agency issued its final decision on February 9, 2016, Complainant had already filed a hearing request with the EEOC’s St. Louis District Office. The record reveals that an EEOC AJ from the Commission’s St. Louis District Office dismissed Complainant’s hearing request without prejudice on March 29, 2016, as Complainant had appealed the Agency’s February 9, 2016 final decision to the EEOC’s Office of Federal Operations. CONCLUSION Accordingly, it is the decision of the Commission to VACATE the final Agency decision and REMAND the complaint to the Agency for further processing in accordance with the ORDER herein. ORDER The Agency shall submit to the Hearings Unit of the EEOC’s St. Louis District Office the request for a hearing and a copy of the complaint file to the EEOC Hearings Unit within 30 days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the request for a hearing and the complaint file has 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 (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. 0120161412 4 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, 0120161412 5 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 April 18, 2018 Date Copy with citationCopy as parenthetical citation