U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * LOIS G.,1 COMPLAINANT,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.
Appeal No 0120142916
Agency No. 4K-300-0142-13
January 6, 2016
 
DECISION
 
On August 12, 2014, Complainant filed a timely appeal with this Commission from the Agency's August 1, 2014 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. The appeal is deemed timely and is accepted for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision and REMANDS the matter for a hearing in accordance with our order below.
 
Complainant worked as a Lead Sales and Service Associate at the Wesley Chapel Post Office in Decatur, Georgia. On August 6, 2013, she filed a complaint in which she alleged that the Customer Services Supervisor retaliated against her for prior protected EEO activity by subjecting her to an investigative interview on April 22, 2013, and issuing her a letter of warning on April 25, 2013. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. The Agency subsequently issued a final decision finding no discrimination after determining that Complainant did not submit a request for a hearing within the time frame prescribed by the Commission's regulations. On appeal, Complainant contends that the Agency did not serve her attorney with notice of her right to request a hearing.
 
The Agency is required to provide Complainant with a copy of the investigative file and notify her that she has the right to request a hearing within 30 days of her receiving the investigative file. See 29 C.F.R. § 1614.108(f). When Complainant designates an attorney as a representative, the time frames for receipt of materials shall be computed from the time of receipt by the attorney. 29 C.F.R. § 1614.605(d). The Agency was aware of the fact that Complainant had an attorney, as evidenced by the designation of the attorney and inclusion of the attorney's mailing address in her formal complaint. IR 15; Appeal Brief, ¶¶ 5-6 & n. 2. Yet the notice of Complainant's right to request a hearing does not include Complainant's attorney among its designated recipients IR 1-3. Consequently, the attorney did not become aware that Complainant had received notice of her right to request a hearing until Complainant furnished him with the notice and the complaint file on July 22, 2014. Appeal Brief, ¶ 9. Upon seeing the notice for the first time, the attorney prepared a hearing request form and filed it on August 12, 2014. Appeal Brief, Attachment 2. Based on the evidence before us, we find that Complainant's request for a hearing was timely. See Crawford v. United States Postal Service, EEOC Appeal No. 0120082178 (April 16, 2010). Accordingly, the Commission VACATES the Agency's final decision and REMANDS the matter for further processing in accordance with this decision and our order below.
  
ORDER
 
Within thirty (30) calendar days o the date this decision becomes final, the Agency is ordered to submit a request to the Hearings Unit of the Atlanta District Office for scheduling of a Hearing. The Agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within 30 days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set for the below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall take final action in accordance with 29 C.F.R. § 1614.110.
  
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. Hadden
Director
Office of Federal Operations
Footnotes

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.