U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarrod W,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120172012 Agency No. 4J-604-0174-16 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 21, 2017, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Roselle Post Office facility in Roselle, Illinois. The record indicated that Complainant was reinstated to the City Letter Carrier position in June 2014. On August 19, 2016, Complainant submitted a request to the Postmaster asking for full reinstatement. In his request, Complainant asked that the Postmaster roll back his retirement date and make adjustments to his pay and leave based on his previous 19 years of service with the Agency. The Postmaster denied his request by email dated August 22, 2016. On August 29, 2016, Complainant contacted the EEO Counselor alleging discrimination. The matter was not resolved informally. On December 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), disability, and age (44) when: on August 29, 2016, the Agency denied Complainant's request to reconsider his June 14, 2014, conversion from City Carrier Assistant to the career City Letter Carrier position. By final decision dated December 22, 2016, the Agency dismissed the complaint pursuant 29 C.F.R. § 1614.107(a)(1) for stating the same claim as a prior EEO complaint. In Jarrod W. v. U.S. Postal Serv., EEOC Appeal No. 0120171024 (April 14, 2017), the Commission found that the Agency's dismissal was not appropriate. The Commission noted that Complainant had filed an earlier EEO complaint regarding the denial of his request for reinstatement in May 2013. Subsequently, Complainant was returned into a career appointment and was converted to his current position in July 2014. In the instant complaint, Complainant alleged discrimination when the Agency denied his request for "full reinstatement' - to include his former salary, leave and seniority from the 19 years he worked for the Agency prior to his resignation. As such, the complaint at hand was remanded back to the Agency for further processing "in accordance with 29 C.F.R. § 1614.108;" meaning the Agency was to conduct an impartial investigation of Complainant's claim. Subsequently, on April 21, 2017, the Agency issued a second final decision regarding the same complaint. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency held that Complainant was reinstated and subjected to a career conversion in June 2014. The Agency noted he was informed of his grade, salary, and benefits when Complainant accepted the career conversion in June 2014. Therefore, the Agency concluded that Complainant waited over two years to raise his claim of discrimination with the Agency. In addition, the Agency held that Complainant had engaged in prior EEO activity and should have been aware of the 45 day time limit. As such, the Agency dismissed the complaint at hand for a second time. This appeal followed. ANALYSIS AND FINDINGS As indicated above, the Agency had previously dismissed this complaint. In the Commission's previous decision, we reversed the Agency's final decision and remanded the matter for further processing in accordance with 29 C.F.R. §1614.108. EEOC Regulation 29 C.F.R. § 1614.108(b) requires that the Agency develop an impartial and appropriate factual record. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("MD 110"), Ch. 6-1 (Aug. 5, 2015). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough "[t]o ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigations allow for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." Id. Rather than investigating the complaint in compliance with the Commission's previous decision, the Agency dismissed the complaint again pursuant to 29 C.F.R. § 1614.107(a)(2). As such, we find that it is not appropriate for the Agency, at this stage, to ignore the order of the Commission's previous decision and dismiss the complaint. CONCLUSION We find that the Agency's final decision is REVERSED and the matter is REMANDED for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 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 October 13, 2017 __________________ 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 0120172012 5 0120172012