Susan S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

2019001242 (E.E.O.C. Apr. 26, 2019)

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

Susan S.,1
Complainant,

v.

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

Appeal No. 2019001242

Hearing No. 451-2015-00057X

Agency No. 4G780016314

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14,
2018, final decision concerning an equal employment opportunity (EEO) complaint claiming
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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Customer Service Supervisor, EAS-17, at
the Agency’s Coronado Station in El Paso, Texas.

On June 30, 2014, Complainant filed a formal EEO complaint alleging that she was subjected to
ongoing discriminatory harassment based on race (Black American), sex (female), age (born
1969), and reprisal for prior protected EEO activity.

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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After the investigation of the complaint, Complainant was provided with a copy of the report of
the investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
requested a hearing.

However, on July 31, 2018, the AJ remanded the complaint to the Agency to issue a final
decision based on the evidence developed during the investigation. According to the AJ,
Complainant had withdrawn her hearing request. On September 14, 2018, the Agency issued its
final decision, finding no discrimination.

The instant appeal followed. On appeal, Complainant, through counsel, argues that the AJ erred
in concluding that Complainant had withdrawn her initial hearing request submitted on January
15, 2015. Complainant states that she notified the Agency of the error via email on August 8,
2019, and the Agency acknowledged receipt of this correspondence. Complainant further states
that she notified the AJ on August 16 and 30, 2018, of the error, but the AJ never responded.

Complainant submits a copy of an August 8, 2018 email, from Complainant’s representative to
the Agency, stating that the AJ’s Order “was issued in error.” The email recommends that the
Agency participate in a joint phone call with Complainant and the AJ to discuss this issue.
Complainant submits a copy of the Agency’s response agreeing to address this issue the
following week.

Complainant also submits a copy of an August 16, 2018 email from Complainant’s
representative, informing the AJ that Complainant never withdrew her hearing request.
Complainant also copies the Agency representative on the August 16, 2018 email. Complainant
explains in the email that the Agency filed a “Motion to Dismiss the Complaint and Remand it to
the Postal Service for a Final Agency Decision,” Complainant filed a “Memorandum in
Opposition to the Agency’s Motion to Dismiss the Complaint and Remand it to the Postal
Service for a Final Agency Decision,” and the Agency subsequently withdrew its motion.
Complainant clarifies in the email that the title of her response to the Agency’s motion was not a
request for an Agency final decision, rather, the response was “intended to reflect the full title of
the Agency’s motion.” Complainant then requests a status conference “to discuss reinstatement
of the proceedings.”

Lastly, Complainant submits a copy of follow-up August 30, 3018 email from her representative,
requesting a response from the AJ. Complainant also copied the Agency on this email.

ANALYSIS AND FINDINGS

Given the specific circumstances of this case, we find that Complainant has produced sufficient
evidence that she never withdrew her hearing request. Complainant submitted copies of emails
sent to the Agency and the AJ in August 2018 stating that the AJ’s July 31, 2018 Order was
issued in error. The emails support that the Agency acknowledged that it was aware of this issue
when it responded to Complainant’s initial August 8, 2018 email.
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The emails further support that Complainant explained to the AJ on August 16, 2018, that the
title of her memorandum in opposition to the Agency’s motion to dismiss was misinterpreted as
a request for a final Agency decision in lieu of an AJ hearing. In the August 16, 2018 email,
Complainant also requested that the AJ hold a status conference. However, the AJ did not
respond to the August 16, 2018 email or to Complainant’s August 30, 2018 follow-up email
seeking guidance on this issue. Consequently, the Agency issued a final decision on September
14, 2018.

The Agency’s September 14, 2018 final decision is VACATED. This matter is REMANDED to
the Agency, for submission to the appropriate Hearings Unit, as detailed in the ORDER below.

ORDER

The Agency shall submit to the Hearings Unit of the EEOC’s San Antonio field office a request
for hearing on Complainant’s behalf within fifteen (15) calendar days of the date this decision is
issued. The Agency is directed to submit a copy of the complaint file, as well as a copy of this
appellate decision, to the EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The Agency shall provide written notification to the Compliance Officer
at the address set forth below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the administrative judge shall process 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.
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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.
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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

April 26, 2019
Date