Janel B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 5, 2019

2019001964 (E.E.O.C. Mar. 5, 2019)

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

Janel B.,1
Complainant,

v.

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

Appeal No. 2019001964
Agency No. 4C-080-0126-18

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision finding no discrimination on her 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. 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 Mail Handler
Assistant at the Trenton Carrier Annex in Yardville, New Jersey. On August 17, 2018,
Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory
harassment on the basis of color (light skinned black) when:

1. On March 10, 2018, she was placed on Emergency Placement;
2. On May 21, 2018, the supervisor threatened to have her car towed;
3. On May 25, 2018, she was issued a 7-Day Suspension;
4. On June 6, 2018 she was given a Pre-Disciplinary Interview (PDI);
5. On July 2, 2018, she was told that her tank top was inappropriate and to put a jacket
on;
6. On July 3, 2018, she was given a PDI; and

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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7. On July 14, 2018, she was issued a Notice of 14-Day Suspension.

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 Agency states a copy of the investigative report was transmitted to Complainant
on December 6, 2018.

The Agency issued a final decision dated February 4, 2019, 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 requested a hearing before an EEOC AJ which was
granted. Complainant provides a copy of an acknowledgment letter from the EEOC’s New York
District Office dated January 5, 2019, noting Complainant’s request for a hearing for Agency No.
4C-080-0126-18 was received.

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.

In the present case, the Agency states a copy of the investigative report was transmitted to
Complainant on December 6, 2018. Thereafter, Complainant requested a hearing on her complaint
before an EEOC AJ. The record indicates that the hearing request was received at the EEOC’s
New York District Office by the latest on January 5, 2019. Our records indicate the hearing is
currently pending under EEOC Hearing No. 520-2019-00305U.

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.

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ORDER

The Agency shall submit to the Hearings Unit of the EEOC’s New York District Office 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 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 (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:
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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
5 2019001964

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

March 5, 2019
Date