U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Velva B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 2020001794 Hearing No. 520-2010-00280X Agency No. 4B-140-0062-06 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 July 11, 2018, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final decision. BACKGROUND From May 5, 2006, through July 1, 2011, the Agency conducted the National Reassessment Program (NRP). The Agency estimated that approximately 15,000 employees received new work assignments as a result of their NRP assessments; 10,000 employees received determinations of total or partial “No Work Available” assessments; and 34,000 employees separated while the NRP was in effect. On August 7, 2007, a class action complaint was initiated, and an EEOC Administrative Judge (AJ) certified the class on May 30, 2008. The Agency rejected and appealed the AJ’s decision to certify the class. 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. 20200017942 On January 14, 2010, the Commission reversed the Agency’s final order; and remanded the matter back to the Agency to notify potential class members of the Commission’s decision, and to request the appointment of an AJ to hear the certified class complaint, in EEOC Appeal No. 0720080054. On June 4, 2015, the AJ issued an initial Report of Finding (without a hearing) and a Final Report of Findings and Recommendations on September 21, 2015. The AJ found that rehabilitation and limited-duty employees were discriminated against based on disability when they were subjected to: (1) withdrawals of their reasonable accommodations; (2) hostile work environments; and (3) disclosures of confidential medical information. On February 8, 2016, the Agency issued a final order rejecting the AJ’s findings, and appealed the decision. The Commission reversed the Agency’s final order rejecting the AJ’s findings. Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017). The Agency then requested a reconsideration and clarification on October 30, 2017, which was denied on March 9, 2018. With regard to its request for clarification, the Agency noted that the Commission’s earlier orders did not reference the EEOC Management Directive 110 (MD-110), Chapter 8 §XII(C); and the Agency proposed to process individual claims for relief according to MD-110. In response, Class Agent argued that the regulations were “clear on how to manage the individual claim relief process,” and that the AJ is the appropriate person to manage the individual claim relief process for class members. The Commission agreed with Class Agent and ordered the Agency to notify class members of the Commission’s decision, along with the provisions for class members to file a claim for individual relief. The Commission also ordered the Agency to conduct a supplemental investigation pertaining to Class Agent’s entitlement to compensatory damages as a result of the Agency’s discrimination. Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0520180094 & 0520180095 (Mar. 9, 2018). On July 11, 2018, the Agency issued a final decision awarding Class Agent $22,500.00 in non- pecuniary, compensatory damages. On August 10, 2018, Class Agent appealed the Agency’s final decision, and requested an award for non-pecuniary, compensatory damages in an amount between $200,000.00 and $300,000.00. On July 12, 2018, Class Agent filed an appeal on all Agency final decisions issued on class members’ claims for individual relief, alleging that these final decisions were issued in error, and in violation of the Commission’s process for relief claims. On November 8, 2018, the Commission found that the Agency’s final decisions on disputed claims for individual relief were premature because an AJ retains jurisdiction and is responsible for resolving disputed claims for individual relief. The Commission ordered the Agency to vacate all final decisions issued on disputed claims for individual relief where an AJ had not issued a decision resolving the dispute; and remanded the disputed claims for further processing. Velva B. v. U.S. Postal Serv., EEOC Appeal No. 0120182505 (Nov. 8, 2018). 20200017943 ANALYSIS AND FINDINGS We find that the Agency’s final decision should be vacated pursuant to our previous decision, EEOC Appeal No. 0120182505 (which we note was issued after the Agency’s decision on compensatory damages), in which we ordered the Agency to vacate final decisions on all disputed claims for individual relief where an AJ had not issued a decision resolving the dispute because an AJ shall retain jurisdiction over the complaint in order to resolve any disputed claims by class members. 29 C.F.R. §1614.204(l)(3). In the final decision, the Agency determined that Class Agent was entitled to $22,500.00 in non- pecuniary, compensatory damages, in response to Class Agent’s claim for an award for non- pecuniary, compensatory damages in an amount between $200,000.00 and $300,000.00. In this case, an AJ has not issued a decision to resolve the dispute on Complainant’s claim for individual relief. Therefore, we shall vacate the Agency final decision and remand Complainant’s claim for individual relief for further processing. CONCLUSION Accordingly, we VACATE the Agency’s final decision, and REMAND the claim back to the Agency for further processing, in accordance with our ORDER herein. ORDER To the extent that it has not already done so, the Agency shall inform Administrative Judge Monique Roberts-Draper in the EEOC’s New York District Office (or the appropriate AJ if the matter has been reassigned) that it intends to dispute Class Agent’s claim for individual relief, within 60 days of the date this decision is issued. With its notification of intent to dispute a claim for individual relief, the Agency will include a copy of the administrative file for the disputed claim. 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). 20200017944 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. 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: 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. 20200017945 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. 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 August 25, 2020 Date
