U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Andres M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120152411 Agency No. 4A-088-0100-09 DECISION Complainant filed a timely appeal with this Commission from the September 23, 2014 dismissal by an EEOC Administrative Judge (AJ), which became the Agency's final decision, regarding a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a G-7 Driver Safety Instructor at an Agency facility in Trenton, New Jersey. On November 5, 2009, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race and age when: 1. three out of four comparators did not have the Class-A License required for the G-7 Driver Safety Instructor position. On January 26, 2012, Agency counsel, Complainant, Complainant's Union representative, and the Administrative Judge (AJ) attended a telephone pre-hearing conference. After discussing the case, all parties agreed that Complainant was "requesting an opportunity to review his options (to withdraw or continue with the Administrative Hearing) and to provide a written response within thirty (30) days of the Arbitration Decision for the above mentioned Union grievance." On January 27, 2012, Complainant and his Union representative memoralized the conversation by formally requesting the AJ to hold the administrative hearing in abeyance, without prejudice, until the arbitration decision (CJAL018-20MV09) was issued. On February 10, 2012, the AJ issued the Order of Dismissal Without Prejudice (Order). The Order stated: The arbitration decision, CJAL018-20MV09, was never issued to Complainant. On January 31, 2013, Complainant retired from federal service. On or around September 15, 2014, Agency counsel wrote a letter to the AJ requesting that the case be dismissed with prejudice. Agency counsel stated that he had contacted the Agency's Labor Relations Manager to find out if any arbitration award had been issued. Agency counsel was informed that none was ever issued, and "the apparent reason for that is that [Complainant] retired on January 31, 2013. Agency counsel stated that "[i]n light of these facts it would appear that Complainant has no interest in continuing with his EEOC case." Agency counsel then requested that the AJ close Complainant's case either by Complainant's withdrawal, or by converting the AJ's earlier Order of Dismissal Without Prejudice into an Order of Dismissal with Prejudice. On or around September 23, 2014, the AJ issued an Order of Dismissal with Prejudice. The AJ noted that an arbitration award was never issued, seemingly due to Complainant's retirement from federal service. The AJ also cited Complainant's failure to renew his request for a hearing as reasons to dismiss the case with prejudice. The Agency did not issue a final order adopting the AJ's September 23, 2014 dismissal. As a result, the AJ's decision became the Agency's final decision. On June 9, 2015, Complainant filed the instant appeal. On appeal, Complainant contends that it was improper for the AJ to dismiss his complaint with prejudice. Complainant contends that he was never given an arbitration decision, and that he was thus never given the opportunity to request a hearing. Complainant contends that his right to a hearing was improperly taken away, and requests that the Commission find that he was subjected to discrimination based on race and age. Alternatively, he requests that his case be remanded to the Agency for further investigation. ANALYSIS AND FINDINGS Regarding the instant formal complaint, Complainant and the Agency attempted to resolve the matter raised therein, through arbitration. During a Pre-Hearing Conference call, all involved parties agreed that the case would be held in abeyance with the AJ, pending an arbitration decision. The parties further agreed that within 30 days of receiving the arbitration decision, Complainant would have been given the choice to request a hearing before the AJ. As a result of the Pre-Hearing Conference call, Complainant had formally written to the AJ on January 27, 2012, requesting that the AJ hold the administrative hearing in abeyance, without prejudice, until the arbitration decision (CJAL018-20MV09) was issued. The AJ complied with Complainant's request. The AJ's order specifically stated that the "Complainant shall be allowed to renew his request for a hearing before an EEOC Administrative Judge within 30 days of the issuance of the arbitrator's decision." Complainant then retired from federal employment on January 31, 2013. At the time of Complainant's retirement, he had not received an arbitration decision. On or around September 15, 2014, the Agency's counsel sent correspondence to the AJ on the case, noting that an arbitration decision was never issued, but due to Complainant's retirement election, the Agency was seeking a dismissal with prejudice. The AJ complied with the request and on September 23, 2014, issued an Order of Dismissal with Prejudice. It is undisputed that Complainant was never offered his right to a hearing on the merits of his claims, as the arbitration decision was never issued to him. On appeal, Complainant argues that his right to a hearing was improperly denied and that his retirement election did not have an impact upon his desire to continue pursuing his claims. We note that the precipitating event for a dismissal with prejudice, as expressly articulated in the AJ's February 10, 2012 Order, was to be Complainant's failure to request a hearing "within 30 days of the issuance of the arbitrator's decision." As that precipitating event appears not have occurred, the AJ's decision to nevertheless dismiss with prejudice in the absence of such an arbitrator's decision is improper. Therefore, given the specific circumstances of this case, the AJ's September 23, 2014 Order of Dismissal with Prejudice, which became the Agency's final decision, is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following action: The Agency shall submit to the Hearings Unit of the appropriate EEOC District Office a request for a hearing on the subject claim, within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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. 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. Carlton M. Hadden, Director Office of Federal Operations November 12, 2015 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152411 2 0120152411