[Redacted], Emerson P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2021001011 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021001011 Agency No. 1C-191-0005-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 8, 2020, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Processing Clerk at the Agency’s Processing and Distribution Center in Philadelphia, Pennsylvania. On February 26, 2020 (and later amended), Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (African-American), sex (male), disability (Lymphocytic Lymphoma, left knee, and right torn meniscus), age (55), 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. 2021001011 2 1. On October 11, 2019, Complainant was “bumped” from his regular assignment; 2. On October 13, 2019, management threatened to call the police on Complainant, and gave him an investigative interview; 3. On October 28, 2019, Complainant was placed on the “Deems Desirable” list, requiring him to submit medical documentation after each absence; 4. On or around January 2, 2020, Complainant was given an investigative interview; 5. On or around February 20, 2020, Complainant was issued a Letter of Warning (LOW); 6. On dates to be specified between January 31, and February 14, 2020, management altered his time records; 7. On or around February 24, 2020, Complainant was charged Leave Without Pay (LWOP); and 8. On May 1, 2020, Complainant was subjected to a hostile work environment by a coworker who called him a “moron” and a “fucking dumbass”, and management failed to take appropriate action. After its investigation into the complaint, the Agency indicated that it mailed to Complainant a copy of the report of investigation (ROI) and notice of his right to request a hearing (Notice) before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). The record reflects that the ROI and Notice were sent to Complainant via certified mail requiring a signature confirmation. The envelope also had two labels indicating that the envelope was returned to sender. The record does not contain evidence of a signature confirming receipt of the ROI and Notice. 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). In the decision, the Agency found that Complainant failed to show that he was subjected to discrimination, reprisal, or a hostile work environment. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues he never received the ROI and notes that there is no signature confirmation in the file. Complainant seeks remand so that he may request a hearing before an EEOC AJ. 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. 2021001011 3 Upon review of the record, we are not persuaded that the Agency complied with the requirements above. The Agency indicated that it transmitted the ROI on August 12, 2020, but Complainant failed to request either a hearing or an Agency final decision. The record contains a copy of the August 12, 2020 transmittal letter, the Request for Hearing Form, and the ROI. The record does not, however, contain evidence indicating that such documents were delivered to Complainant. The record contains a copy of a USPS envelope addressed to Complainant which, by the Agency’s representation, contained the ROI and Notice. The envelope is stamped “Return to Sender” as unclaimed. Further, the Agency does not contest Complainant’s contention that he never received the ROI. The record, therefore, does not contain sufficient evidence establishing that Complainant received the ROI or the Notice. The Commission finds that the Agency has not refuted Complainant's contention that he did not receive the ROI or the Notice. Given that Complainant has indicated on appeal that he desires to have a hearing in this case, the Commission vacates the Agency's final decision. 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 to the Agency for processing in accordance with the Order below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall file a request for a hearing on behalf of Complainant with the Hearings Unit of the Philadelphia District Office. The Agency is also directed to submit a copy of the complaint file, as well as a copy of this decision, to the Hearings Unit of the Commission's Philadelphia District Office within 30 calendar days of the date this decision is issued. The Agency shall provide notification to the Office of Federal Operations via the Federal Sector EEO Portal as set forth below that the request and complaint file have 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 et seq. and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 2021001011 4 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). 2021001011 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. 2021001011 6 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 02, 2022 Date