[Redacted], Dona A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jun 27, 2022

Appeal No. 2021003477 (E.E.O.C. Jun. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dona A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003477 Agency No. 4C-370-0126-2020 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 9, 2021, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Lead Sales & Service Associate at the Agency’s Donelson Station in Nashville, Tennessee. On August 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), color (White), and age (44) when: 1. On June 23, 2020, management allowed a coworker to return to the workplace after the coworker had threatened Complainant on numerous occasions; and 2. On July 3, 2020, management threatened to terminate her. 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. 2021003477 2 At the conclusion of the investigation, on December 1, 2020, 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 Administrative Judge (AJ). When the Commission did not receive Complainant’s request for 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 Agency found that Complainant did not establish that she was subjected to discriminatory harassment because the evidence in the record does not indicate that the alleged incidents were due to any of Complainant’s protected classes. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On February 6, 2021, Complainant, through her representative, sent an inquiry to the EEOC Memphis District Office, noting that Complainant had submitted a timely request for a hearing to the Commission’s District Office in Memphis and the Agency’s EEO office in Tampa Florida via first-class mail on December 21, 2020, and inquiring as to whether Complainant’s case had been assigned to an Administrative Judge (AJ) for a hearing. Thereafter, Complainant received a copy of the Agency’s final decision on February 12, 2021 and Complainant’s representative received a copy of the Agency’s decision on February 16, 2021. On February 21, 2021, Complainant’s representative contacted a legal assistant at the EEOC District Office in Memphis, who confirmed that the District Office in Memphis had no record of receiving Complainant’s request for a hearing. On May 19, 2021, an AJ issued an Order of Dismissal. In so doing the AJ noted that the Agency had already issued its final decision in the case and the Agency’s decision was currently on appeal to the Commission. The AJ also noted that there was no record that the Commission had received Complainant’s request for a hearing. On appeal, Complainant initially contends that she attempted to submit a request for a hearing in a timely fashion but that the hearing request was not received through no fault of her own and therefore argues that she should be entitled to a hearing. Complainant submits statements from a couple witnesses who saw Complainant mail envelopes which Complainant asserts contained her request for a hearing. The witnesses confirmed that the envelopes were addressed to the Commission’s Memphis District Office and the Agency’s EEO office in Tampa. The Agency did not file a brief on appeal. ANALYSIS AND FINDING Upon review of the record, we find that the record establishes that Complainant filed a timely hearing request which was not received by the Commission through circumstances beyond Complainant’s control. We note that the Agency does not dispute that Complainant filed a timely hearing request. As such, we find that based evidence submitted by Complainant of a timely hearing request to EEOC, this matter should be returned to the AJ for further processing. See 29 C.F.R. §1614.108. 2021003477 3 Under these circumstances, the Agency did not have authority to issue its final decision. Accordingly, we VACATE the Agency’s final decision and REMAND this matter to the Agency for continued processing in accordance with the Order below. ORDER Within fifteen (15) calendar days of the date this decision is issued, the Agency is ordered to submit a request for a renewed hearing on behalf of Complainant to the EEOCs Memphis District Office Hearings Unit. A complete copy of the complaint file, as well as a copy of this decision, shall accompany the hearing request. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the hearing request and complaint file has been transmitted to the Hearings Unit. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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. 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. 2021003477 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003477 5 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 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 June 27, 2022 Date