0120132718
09-01-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120132718
Agency No. 4C-190-0074-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 9, 2013 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Post Office facility in Chadds Ford, Pennsylvania.
On November 9, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race, sex (female), color, disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
Section 501 of the Rehabilitation Act of 1973 when:
1. Since April 19, 2012, the Postmaster has made inappropriate comments to her, touched her inappropriately, and made inappropriate gestures at her and in front of her. She has also been threatened with discipline and told her attire was unprofessional.
2. On July 3, 2012, she was placed in an Emergency Placement, Off-Duty status;
3. On August 27, 2012, she was issued a Notice of Removal; and
4. On September 17, 2012, she became aware that her pay was incorrect.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
On July 9, 2013, the Agency issued a final decision finding no discrimination. The Agency asserted that Complainant failed to request a hearing or a final decision.
This appeal followed.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the Agency's complaint file included a copy of Complainant's request for a hearing and the AJ's acknowledgment of the hearing request. Therefore, the Agency improperly issued a final decision on the merits of the formal complaint without Complainant being afforded the hearing she timely requested. The record indicates that Complainant was sent the report of investigation along with her right to request a hearing or an Agency final decision on April 16, 2013. The record shows that Complainant sent her hearing request to EEOC's Philadelphia District Office on April 18, 2013, via mail which was received by the EEOC's Philadelphia District Office on April 23, 2013. On July 23, 2013, the Hearing Unit of EEOC's Philadelphia District Office sent the Agency an Order Directing Agency to Produce Electronic Complaint File (EEOC Hearing No. 530-2014-00044X). There is no indication in the record whether or not the Agency complied with this order.
Based on the record, we find that Complainant timely requested a hearing. Accordingly, we VACATE the Agency's final decision and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the Philadelphia District Office a renewed request for a hearing, as well as a copy of this decision, within fifteen (15) calendar days from the date this decision becomes final.1 If it has not already done so, the Agency is also directed to submit an electronic copy of the complaint file to the EEOC Hearings Unit as ordered by it in July 2013 within fifteen (15) calendar days from the date this decision becomes final. 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.
A copy of the Agency's hearing request and notification that it has forwarded the complaint file to the Hearings Unit must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 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 Complainants 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
September 1, 2015
__________________
Date
1 As noted above, the EEOC's Philadelphia District Office has already docketed the instant matter for a hearing, EEOC Hearing No. 530-2014-00044X.
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