[Redacted], Dania S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionFeb 22, 2023Appeal No. 2023000958 (E.E.O.C. Feb. 22, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dania S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000958 Agency No. 1C-531-0114-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 11, 2022, dismissing a formal complaint alleging 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Laborer Custodial in Duluth, Georgia. On May 6, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex and in reprisal for prior protected activity (prior EEO case). By letter dated May 25, 2022, the Agency accepted the formal complaint for investigation. The Agency determined that the formal complaint was comprised of the following claims: 1. On September 8, 2021, [Complainant] became aware that [she was] being watched by management. 2. On October 20, 2021, [her] request for a permanent reassignment to Tour 1 was not granted. 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. 2023000958 2 3. On November 1, 2021. A co-worker told [her] that management told him not to talk to [her]. 4. On November 8, 2021, [Complainant] was taken off a Change of Schedule (COS) and told [she] would be returning to Tour II. 5. On November 18, 2021, [she] became aware management had been spreading rumors about [her] of a sexual nature. 6. On November 24, 2021, [she was] denied a Change of Schedule to Tour I. 7. On December 16, 2021, [Complainant was] denied an overtime opportunity. 8. On January 13, 2022, [she was] issued a Letter of Warning. On October 11, 2022, the Agency issued a final decision dismissing the complaint for failure to cooperate. The Agency reasoned that Complainant and her attorney were sent an affidavit request via email dated May 31, 2022. The Agency stated that the affidavit request informed Complainant that failure to complete the affidavit within 15 days of receipt of the request could result in dismissal of her complaint. The Agency found that Complainant did not submit a timely affidavit. The instant appeal followed. On appeal, Complainant, through her attorney, requests that we reverse the Agency’s final decision. Complainant’s attorney asserts that the formal complaint requested that correspondence sent by the Agency related to this EEO matter not be sent via email. Complainant’s attorney asserts that he and Complainant were expecting to receive information on this matter via “hard copy” through regular mail and did not notice any affidavit request via email. Thus, Complainant’s attorney asserts that there was no delay or contumacious conduct by Complainant. Complainant’s attorney asserts that there is sufficient information through Complainant’s formal complaint and pre-complaint documents in order for the Agency to investigate her complaint. ANALYSIS AND FINDINGS The regulation at 29 C.F.R. § 1614.107(a)(7) provides that an agency may dismiss a complaint for failure to cooperate. The regulation is applicable under the following circumstances: 1) the agency has provided complainant with a request to provide relevant information or to otherwise proceed with the complaint; 2) the request included a notice of proposed dismissal for failure to respond within 15 days of receipt of the request; and 3) the complainant either fails to respond to the request within 15 days or the complainant’s response does not address the agency’s request. 2023000958 3 Our guidance and precedent have thoroughly established that a dismissal of a complaint for failure to cooperate is only proper where there is sufficient evidence to support a conclusion that complainant purposely engaged in delay or contumacious conduct, and there was insufficient information in the record to have permitted the agency to continue the investigation. See EEO Management Directive for 29 C.F.R. Pat 1614 (“EEO MD-110”) Ch.5 Sec. IV.B.2 (Aug. 5, 2015). The Agency improperly dismissed Complainant’s complaint for failure to cooperate. We acknowledge that the Agency sent Complainant and her attorney an affidavit request via email dated May 31, 2022. However, the record is devoid of evidence that Complainant’s attorney actually received or opened this email. In addition, Complainant’s attorney made a notation on the formal complaint that he disagreed with the Agency sending correspondence regarding this matter via email. Based on the foregoing, we do not find that Complainant engaged in delay or contumacious conduct regarding this matter. We further find that there was sufficient information for the Agency to continue the investigation of Complainant’s complaint. Complainant’s formal complaint and pre-complaint documents reflect that she set forth the incidents at issue, the alleged responsible management officials, and the pertinent dates of the incidents at issue. Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to resume processing of the instant formal complaint from the point where processing ceased pursuant to the procedures and time frames detailed in 29 C.F.R. Part 1614. Within thirty (30) calendar days of the issuance of this decision, the Agency shall acknowledge to Complainant that it has reinstated and resumed processing of the complaint at the investigative stage. Complainant shall be provided another opportunity, if she has not already done so, to submit an affidavit and any other relevant supporting evidence. A copy of the Agency letter of acknowledgement 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). 2023000958 4 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. 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2023000958 5 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2023000958 6 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 February 22, 2023 Date Copy with citationCopy as parenthetical citation