[Redacted], Cristen T., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 14, 2022

Appeal No. 2019002523 (E.E.O.C. Sep. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristen T.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Petition No. 2022004440 Appeal No. 2019002523 Agency No. 4G770015618 DECISION ON A PETITION FOR CLARIFICATION On August 16, 2022, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification on its own motion to examine the enforcement of an Order set forth in EEOC Appeal No. 2019002523 (July 7, 2020). The Commission accepts this petition for clarification pursuant to 29 C.F.R. § 1614.503. This decision is to provide clarification on the order from the appellate decision. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Rural Carrier Assistant at the Agency’s Crosby Post Office in Crosby, Texas. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of race (Caucasian), national origin (Mexican), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2 2022004440 At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Petitioner 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). The Final Agency Decision (FAD) concluded that Petitioner failed to prove that the Agency subjected her to discrimination as alleged. Petitioner appealed the Agency’s final decision to the Commission. In Cristen T. v. U.S. Postal Serv., EEOC Appeal No. 2019002523 (July 7, 2020), we found that Petitioner raised very serious allegations indicating that she was subjected to severe and pervasive verbal conduct. However, we determined that the record in this case had not been adequately developed because none of Petitioner’s coworkers provided testimony. The appellate decision noted that the record was devoid of any evidence that the coworkers were interviewed during the investigation, including the alleged harasser, who should have provided testimony under oath. Given the necessity of remanding for further investigation Petitioner’s claims of harassment based on her national origin and gender, the appellate decision posited that it would be premature to make a determination on Petitioner’s reassignment and constructive discharge allegations until her harassment claims are examined. As such, the appellate decision vacated the Agency’s final decision and remanded the case back to the Agency for a Supplemental Investigation. The appellate decision specifically ordered, in relevant part: 1. Within 45 days of receipt of this order, the Agency shall conduct a supplemental investigation, to include the following actions. 2. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings and return the completed record to the Compliance Officer, as referenced below. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record to the Compliance Officer. Upon receipt by the Compliance Officer, the supplemental record will be included in the appeal file and the appeal will be processed appropriately. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020004209 on July 16, 2020. We find that the appellate decision erroneously directed the Agency to provide a copy of the supplemental investigation to the appeal file for further adjudication by this office. As the appeal file was closed when the appellate decision was issued, there is not a current matter open through which the matter may be adjudicated. Rather, we MODIFY the previous order to supplement the record and direct the Agency to issue a new FAD based on the complete record and include appeal rights. We note that the Agency has provided the Compliance Officer with a copy of the supplemental investigation. Therefore, the only outstanding matter is the issue of the FAD, and we REMAND the case to the Agency to issue a final decision in accordance with the ORDER below. 3 2022004440 ORDER Within thirty (30) days of the date this decision is issued, the Agency shall issue a final decision based on the completed record and include appeal rights to Petitioner. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. 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 documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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. PETITIONER’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) 4 2022004440 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 Petitioner’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 September 14, 2022 Date