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

Equal Employment Opportunity Commission

Jun 5, 2013

0120121506 (E.E.O.C. Jun. 5, 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
(Western Area),
Agency.

Appeal No. 0120121506

Agency No. 4E-800-0115-11

DECISION

Complainant filed a timely appeal with this Commission from the final Agency decision (FAD)
dated January 9, 2012, regarding her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Post Office in Cheyenne, Wyoming. On July 22, 2011, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination and a hostile work
environment on the bases of race (African-American) and sex (female) when she was harassed
by management on a daily basis; she was told she could not return to work half days; her
request for light duty was denied; she was given investigative interviews; and she was denied a
scheduled day off when scheduling days for Vacation Relief Carriers were changed from
Saturday-Saturday to Sunday-Sunday.

The Agency stated that, at the conclusion of the investigation, it provided Complainant with a
copy of the report of investigation (ROI) and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). When Complainant did not respond within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency
subjected her to discrimination or a hostile work environment as alleged.

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CONTENTIONS ON APPEAL
On appeal, Complainant contends that she only received the FAD and did not receive any other
documentation from the Agency, including the notice of her right to request a hearing.
Complainant claims that she agreed to receive documents related to the investigation of her
complaint by CD as long as time-dated documents or documents that needed her signature were
sent separately. The Agency disputes Complainant’s claims stating that it sent her a copy of
the ROI on a CD which included the notice of her right to request a hearing.

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.

In the instant case, Complainant claims that she never received the notice of right to request a
hearing or any other paperwork except the FAD. The Agency asserted that the complete ROI
including the notice of right to request a hearing request was sent to Complainant and
Complainant’s representative on a CD. The Agency, however, has produced no evidence that
Complainant or Complainant’s representative actually received the CD which included the
notice of right to request a hearing and the ROI. As such, the Commission finds that the
Agency has not refuted Complainant’s contention that she did not receive the notice of right to
request a hearing.

CONCLUSION

Accordingly, the Agency's final decision is VACATED and the complaint is hereby
REMANDED to the Agency for further processing in accordance with this decision and the
ORDER below.

ORDER

The Agency, within 30 days of the date this decision becomes final, shall provide Complainant
with a copy of the investigative file and a notice of her right to a hearing pursuant to 29 C.F.R.
§ 1614.108(f). Following the issuance of this notice, the Agency shall process Complainant's
complaint in accordance with applicable EEOC regulations.

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
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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 (Nov. 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
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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
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 5, 2013
Date