Sandra N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019005147 (E.E.O.C. Sep. 30, 2019)

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

Sandra N.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 2019005147

Agency No. 1F-927-0027-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 6, 2019, dismissing 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s P&DC facility in Anaheim, California.

On May 17, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of race (mixed), color, sex (female) and disability. The Agency
framed the issue in the complaint as “on January 7, 2019, [Complainant] was notified that [her]
grievance had been denied at Step 3.”

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim, finding that the matter was a collateral attack on the grievance process.

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.
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In the alternative, the Agency dismissed the complaint for failure to contact an EEO counselor in
a timely manner. The instant appeal followed.

ANALYSIS AND FINDINGS

Based on a fair reading of the complaint and associated EEO counseling report, we determine
that the Agency has mischaracterized the issue raised by Complainant. Complainant is, in fact,
alleging that she was discriminated against when she was removed from her position with the
Agency. In her formal complaint she indicated that other similarly situated employees were
treated more favorably. While she discusses the grievance decision upholding the removal with
the EEO counselor, it is clear from everything in the record that Complainant is alleging that she
was discriminated against regarding her removal. This states a viable claim of discrimination
and should not have been dismissed.

With regard to the timeliness of her claim, EEOC Regulation 29 C.F.R. § 1614.105(a)(1)
requires that complaints of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the
effective date of the action.

To the extent that the Agency dismissed the matter for untimely EEO counselor contact, the
record does not provide any information as to the effective date of the removal. The Notice of
Removal, dated October 4, 2018, states that Complainant would remain in the Agency’s employ
in a non-pay status until the disposition of this case has been had, either through settlement or
through the exhaustion of the grievance process. This it appears Complainant was still on the
rolls of the Agency when her Step 3 grievance was denied on January 24, 2019. She contacted
an EEO counselor on February 1, 2019. Thus, her EEO counselor contact was timely.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claim (discriminatory removal) in accordance
with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has
received the remanded claims within thirty (30) calendar days of the date this decision was
issued. The Agency shall issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of
the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
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As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
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 CFR § 1614.503(f) for enforcement by that agency.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

September 30, 2019
Date