U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Archie G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120160915 Agency No. 4E-800-0103-14 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's February 18, 2015 final decision concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full Time City Carrier at the Agency's Post Office facility in Casper, Wyoming. On August 16, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of sex (male) when, on May 9, 2014, a supervisor made inappropriate sexual remarks about him, but management did not respond appropriately. At the conclusion of the investigation, on December 5, 2014, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and Notice of his Right to request a hearing (Notice) before an EEOC Administrative Judge (AJ). When the Agency did not receive a response from Complainant, the Agency issued its final decision on February 18, 2015. Complainant indicated that he had been deployed with the National Guard from October 24, 2014 to January 24, 2015. Upon his return from deployment on January 25, 2015, he received the ROI and the Notice. Since the Notice indicated that he had 30 calendar days to exercise his right to request a hearing, he filed his hearing request on February 18, 2015. The Agency received the request on February 24, 2015.2 Upon receipt of the Agency's final decision, Complainant filed an appeal with the Commission. On appeal, Complainant indicated that he exercised his rights but the Agency failed to wait until he returned from deployment to issue the ROI and Notice. Complainant provided documentation showing that Complainant extended the investigation by 180 days due to his deployment. As such, Complainant indicated that he has never been afforded the opportunity for a hearing and asks that the Commission allow him to have a hearing. The Agency opposed Complainant's appeal challenging his assertion that he had been deployed. The Agency requests that the Commission reject his request to toll time for his hearing request. ANALYSIS AND FINDINGS The regulations require that the Agency provide Complainant with a copy of the investigative file, and notify Complainant that, within 30 days of receipt of the investigative file, Complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision pursuant to § 1614.110 from the Agency with which the complaint was filed. 29 C.F.R. § 1614.108(f). The record indicated that Complainant did not receive the ROI or the Notice until January 25, 2015, when his deployment ended. The record shows that Complainant's hearing request dated February 18, 2015, well within 30 days of receipt of the Notice. Therefore, we determine that the Agency improperly issued a final decision on the merits of the formal complaint because the record reflects that Complainant timely requested a hearing. CONCLUSION Accordingly, we VACATE the Agency's final decision and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (C0610) The Agency shall submit to the Hearings Unit of the Denver Field Office a request for a hearing, as well as a copy of this decision, within fifteen (15) calendar days from the date this decision becomes final. The Agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days from the date this decision becomes final. Thereafter, the Administrative Judge shall issue a decision on the complaint 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. A copy of the Agency's hearing request and notification that it has forwarded the complaint file to the Hearings Unit must be sent to the Compliance Officer as referenced below. 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, 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's signature Carlton M. Hadden, Director Office of Federal Operations April 14, 2016 __________________ 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 We also note that the matter was received by the EEOC's Phoenix District Office. The matter was docketed as EEOC Hearing No. 541-2015-00078X and assigned to an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency moved to dismiss the hearing based on the instant appeal. The AJ granted the Agency's motion and the hearing case is now closed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160915 5 0120160915