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

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2021001939 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josephine S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Request No. 2022004416 Appeal No. 2021001939 Hearing No. 410-2021-00193X Agency No. 1K-302-0051-20 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021001939 (July 13, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant was employed by the Agency as a Laborer Custodian at its Atlanta, Georgia, Processing & Distribution Center. On May 8, 2020, Complainant filed an EEO complaint alleging discrimination, sexual harassment, and non-sexual harassment on the bases of sex (female) and in reprisal for reporting the harassment and the instant complaint when: 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. 2022004416 2 1. On or about December 14, 2019, and ongoing, her supervisor (Supervisor) made sexual comments/advances to her, and, when she reported it, management failed to take appropriate action; 2. On or about February 22, 2020, and ongoing, Supervisor followed her around the building all day; 3. On February 6, 2020, she was subjected to an attendance review, and subsequently, on February 28, 2020, she was issued a Letter of Warning; 4. On March 13, 2020, Supervisor blocked the time clock, preventing her from clocking in for her shift; 5. On April 1, 2020, she was transferred to the Hapeville location; 6. On June 7, 2020, and continuing, the Operations Support Specialist subjected her to a hostile work environment, including yelling at her, antagonizing her, and refusing to sign her route sheet; 7. On June 11, 2020, she informed the Manager Maintenance that she was still being harassed by Supervisor as well as other management officials, and, on June 24, 2020, she also notified the Plant Manager of the harassment, but they failed to take appropriate action; and 8. On June 29, 2020, the Operations Support Specialist ordered her to return to work even after she informed her that she was hot and trying to rehydrate. On October 20, 2020, the Agency notified Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ). On December 30, 2020, the Agency issued a final decision finding no discrimination. The Agency stated that it issued the final decision pursuant to 29 C.F.R. § 1614.110(b) when Complainant failed to request a hearing or final decision within the time frame provided in 29 C.F.R. § 1614.108(f). On January 29, 2021, Complainant appealed the Agency’s final decision. In Appeal No. 2021001939, the Commission affirmed the Agency’s final decision finding no discrimination. In the appellate decision, the Commission stated that neither Complainant nor the Agency submitted a brief or contentions on appeal. On request for reconsideration, Complainant contends that the Commission failed to consider her appellate brief, which she filed on March 3, 2021. In support of her request for reconsideration, Complainant provides a copy of the March 3, 2021, brief as well as a March 3, 2021, email confirming that the Commission received the brief associated with Appeal No. 2021001939, Agency No. 1K-302-0051-20 that Complainant uploaded at 4:07 p.m. on March 3, 2021. In the March 3, 2021, appellate brief, Complainant argued that she timely requested a hearing and mailed a copy of the hearing request to the Agency at the same time she mailed it to the Commission and requested that the matter be remanded for a hearing. In the alternative, Complainant requested that the Commission reverse the final decision finding no discrimination. The Agency did not submit a statement or brief in response to Complainant’s request for reconsideration. 2022004416 3 Upon review of the Commission’s records, we located an electronic copy of Complainant’s appellate brief that was uploaded on March 3, 2021. Due to a technical glitch, Complainant’s brief, although properly filed, was not added to the electronic case file for Appeal No. 2021001939. Upon Complainant’s request for reconsideration, we also reviewed the Commission’s hearing records for Hearing No. 410-2021-00193X. Complainant’s hearing request was postmarked October 29, 2020, and was received by the Commission’s Atlanta District Office on November 3, 2020. On February 8, 2021, the Commission electronically notified the Agency that it had received Complainant’s hearing request. The Agency filed a motion to dismiss Complainant’s hearing request as untimely or, in the alternative, as outside the AJ’s jurisdiction because Appeal No. 2021001939 was pending before the Commission’s Office of Federal Operations (OFO). On August 16, 2021, the AJ issued an order of dismissal of hearing request without prejudice to refiling within 30 days of an order from the OFO, if appropriate. The AJ determined that the hearing request should be dismissed because the same matter was pending on appeal. In light of the discovery of Complainant’s timely filed brief, we find that Complainant submitted evidence of having requested a hearing prior to the Agency’s issuance of a final decision. Consequently, we find that this matter should be returned to the AJ for further processing. See 29 C.F.R. § 1614.108. CONCLUSION After reviewing the previous decision and the entire record, the Commission hereby VACATES the final decision finding no discrimination and REMANDS the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall submit to the Hearings Unit of the EEOC’s Atlanta District Office a renewed request for a hearing on this complaint on behalf of Complainant, the complete complaint file, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Within five (5) calendar days of the date of assignment of the new hearing number, the Agency shall provide written notification to the Compliance Officer of the new hearing number. Thereafter, the Administrative Judge shall issue a decision 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. 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. 2022004416 4 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. 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. 2022004416 5 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 January 31, 2023 Date