Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120121182 (E.E.O.C. Jun. 14, 2013)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120121182

Hearing Nos. 520-2008-00174X; 530-2007-00317X

Agency Nos. 4A-105-0078-06; 4A-105-0072-07

DECISION

On November 28, 2011, Complainant filed an appeal from the Agency’s November 23, 2011,
final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination. For the following reason, we VACATE the final order and
REMAND the matter to the Agency.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a
Distribution/Window Clerk at the Agency’s facility in Accord, New York. Complainant filed
two formal complaints, dated November 13, 2006 and September 11, 2007, alleging that the
Agency subjected her to discrimination on the bases of her disability (post concussion
syndrome, cervical strain) and in reprisal for prior protected EEO activity when: (1) on June
16, 2006, her postmaster (PM) belittled her in front of co-workers; (2) on June 30 and July 3,
2006, management forced her to report to work against her doctors’ orders; (3) on June 24 and
July 10, 11, 15, 18, 20, and 31, 2006, management forced her to work without breaks; (4) on
August 10, 2006, management gave her a pre-disciplinary interview; (5) on August 22, 2006,
management issued her a seven-day suspension; (6) on July 28, 2006, management forced her
to work at another facility which caused her to be 30 minutes late for a physical therapy
appointment; (7) on August 7, 2006, after learning that Complainant had been approved for
Office of Workers’ Compensation Program (OWCP) benefits, PM began treating her with
disrespect, hostility, and threatened to terminate her employment which adversely effected her
relationship with her co-workers; (8) on August 22, 2006, PM began harassing Complainant
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about pay and approval of medical certification; (9) management denied her light duty on June
17 and 19, 2006; (10) on July 31, 2006, PM harassed her regarding her medical restrictions in
front of customers and co-workers; (11) on an unspecified date PM counted the pieces of mail
Complainant had sorted; (12) on August 17, 2006, PM made rude remarks about
Complainant’s restrictions; (13) PM ridiculed and belittled her when she was issued a notice of
14-day suspension, dated September 15, 2006; (14) on several dates, management charged her
with being AWOL; (15) PM contacted Complainant’s physician by mail and telephone to
change Complainant’s medical restrictions; (16) since October 2006, management has denied
her holiday scheduling rights; (17) in September 2006, PM conducted a drawer count of her
drawer; (18) management denied her higher level assignments; (19) from March through May
2007, management improperly scheduled Complainant and the work schedule was improperly
posted, including improper breaks in her daily work schedule; and (20) on June 12, 2007,
management issued Complainant a Notice of Removal.

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
November 4-5, 2010. Following the hearing, the AJ issued a decision, dated November 2,
2011, finding no discrimination. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged.

On appeal, Complainant contends that the AJ erred in finding no discrimination. She also
contends that neither the AJ nor the Agency ever provided her with a copy of the hearing
transcript. Complainant argues that because she did not have a copy of the hearing transcript,
she was denied the opportunity to properly address the AJ’s Decision and Agency’s final order
in her brief on appeal. The Agency failed to respond to Complainant’s appeal and has offered
no response to her contention that she was not provided a copy of the hearing transcript.

ANALYSIS AND FINDINGS

Complainant was entitled to a copy of the hearing transcript to assist her in the preparation of
her appeal. See Harris v. Department of the Navy, EEOC Appeal No. 01943414 (August 24,
1995). At the conclusion of the hearing stage, the AJ is required to send a copy of the hearing
transcript to the parties. EEOC Management Directive - 110 (November 9, 1999) at Chapter
7, Section III(F). There is no evidence that Complainant ever received the hearing transcript.
Furthermore, the Agency does not contest Complainant’s assertion that she did not receive a
copy of the hearing transcript. Therefore, we shall remand the complaint so that Complainant
may receive a copy of the hearing transcript.

CONCLUSION

Accordingly, we do not address the merits of Complainant’s appeal at this time, but instead
VACATE the Agency’s final action and REMAND the case to the Agency for the purposes of
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providing Complainant with a copy of the hearing transcript in accordance with the ORDER
herein.

ORDER

Within 30 days the date this decision becomes final, the Agency shall contact the EEOC AJ in
the instant matter and request that a copy of the hearing transcript be sent to Complainant. In
the event that the AJ no longer has access to a copy of the hearing transcript, the Commission
advises the Agency that it may obtain a copy from the court reporter or reproduce its own copy
of the hearing transcript and send it to Complainant for her use. Within 30 days after receipt
of the hearing transcript from the AJ, or, at the latest, within 90 days after the date this
decision becomes final, the Agency shall issue a final decision pursuant to 29 C.F.R.
§1614.110. A copy of the letter transmitting the hearing transcript and the final decision must
be submitted to the Compliance Officer, as referenced herein.

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:

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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
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denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 14, 2013
Date