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

Equal Employment Opportunity Commission

Aug 18, 2020

2019003104 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meridith A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019003104 Agency No. 1J-607-0063-18 DECISION On March 30, 2019, 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 February 26, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging 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 and REMANDS the matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time Maintenance Mechanic, PS-07/O, at the Agency’s Chicago Metro Surface Hub in Elk Grove Village, Illinois. On July 7, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), color (Black), and in reprisal for prior protected EEO activity when: 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. 2019003104 2 1. On March 24, 2018 to April 14, 2018, Complainant was denied overtime opportunities; 2. On or around February 13, 2018, Complainant was denied a detail opportunity and career advancement; 3. On March 9, 2018, management reposted a previously eliminated position; 4. On dates not specified, management did not correctly post EAS position vacancies; 5. On June 12, 2018, management reverted vacant maintenance positions; and 6. On July 17, 2018, Complainant was sent home, told not to return to work until she had medical documentation for her recent absence, and charged absence without leave (AWOL) while she was off work at management’s instruction. The Agency dismissed Claims (3) and (5) for failure to state a claim because these claims constituted a collateral attack on a negotiated grievance settlement reached between the union and Agency management under the collective bargaining agreement. The Agency also dismissed Claim (4) for failure to state a claim because Complainant did not show that she was aggrieved by this allegation. At the conclusion of the investigation, the Agency asserted that it 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). When 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 management subjected her to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that she never received the investigative report and was never given an opportunity to request a hearing before an AJ. In addition, Complainant argues several other procedural errors in the processing of her complaint. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(f) provides in relevant part that the 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 with which the complaint was filed. 2019003104 3 Complainant contends that the Agency did not provide her with the report of investigation and notice of her right to request a hearing. The record contains a copy of the December 17, 2018 transmittal letter, the Request for Hearing form, and the report of investigation. The U.S. Postal Service’s Priority Mail envelope for that letter contains a label dated January 17, 2019, stating that the envelope was unclaimed and that the U.S. Postal Service was unable to forward the envelope. The envelope was then returned to sender. There is no evidence that Complainant received the report of investigation or notice of her right to request a hearing. The record therefore does not contain any evidence establishing that Complainant received the report of investigation or was informed of her right to request a hearing. The Commission has repeatedly stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” Ericson v. Dep't 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 receive the report of investigation and notice of right to request a hearing. Thus, in the interest of fundamental fairness and preservation of EEO rights, and because of the lack of persuasive evidence establishing that Complainant received notice of her right to request a hearing, we find that Complainant's complaint should be remanded for a hearing. See Maxima R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120171171 (Nov. 9, 2018). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency shall take the following remedial action within thirty (30) days of the date this decision is issued: The Agency shall issue to Complainant a copy of the investigative file, along with the notice of right to request a hearing. 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. 2019003104 4 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 C.F.R. § 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. 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. 2019003104 5 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 August 18, 2020 Date