0120162420
04-17-2018
Doris F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doris F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120162420
Hearing No. 540-2015-00058X, 540-2016-00110X
Agency No. 4E-840-0026-14, 4E-840-0053-15
DECISION
On July 15, 2016, 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 June 14, 2016, 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. 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 Carrier, Q-01, at the Agency's Midvale Post Office facility in Midvale, Utah.
On June 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (62), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On April 17, 2014, she became aware that during the first quarter of 2014, she was not offered overtime opportunities in an amount equitable to other co-workers;
2. On July 24, 2014, Complainant was issued a Letter of Warning;
3. On September 5, 2014, Complainant was issued another Letter of Warning.
The Agency accepted the complaint for investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
While the first matter was pending, on September 19, 2015, Complainant filed a second EEO complaint. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (62) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
4. On May 5, 2015, Complainant was issued a Notice of a Seven-Day Suspension.
5. On June 25, 2015, Complainant was issued a Letter of Warning.
The Agency accepted claim (4) for investigation. The Agency dismissed claim (5) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. At the conclusion of the investigation of claim (4), the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing an AJ. Complainant asked that the AJ consolidate the two complaints at the hearing. The AJ granted Complainant's request and the matters were consolidated.
On April 12, 2016, the AJ issued a show cause order to Complainant and her representative (Representative) why she should not be sanctioned in the two cases. Complainant and the Agency responded to the AJ's order. On May 9, 2016, the AJ dismissed Complainant's hearing request. The AJ noted that Complainant and the Representative did not comply with an order of March 9, 2016, setting a settlement conference based on three issues. The AJ noted that Complainant failed to work with the Agency to submit a joint notice about whether another EEO complaint was pending and whether the settlement conference would include that matter in the negotiations; failed to submit the opening demand; and failed to submit the settlement memorandum. The AJ noted that the Representative was not able to participate in the Initial Case Conference because he was not informed of the event by Complainant. Complainant had asserted that she had not received the Notice of Conference even though she had submitted the Designation of Representative which was attached to the Notice. Therefore, the AJ held that Complainant failed to show good cause for failing to comply with her orders. Therefore, the AJ cancelled the hearing as a sanction pursuant to 29 C.F.R. � 1614.107(f)(3).
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed. On appeal, the Representative asserted the AJ erred in dismissing the hearing. The Representative argued that the AJ did not find that Complainant had engaged in contumacious conduct that would warrant dismissal of the hearing request. Further, he indicated that Agency's final decision finding no discrimination was incorrect. The Representative argued that Complainant met her burden of establishing her prima facie case of discrimination. Further, the Representative asserted that Complainant showed that the Agency's actions were inconsistent and the legitimate, nondiscriminatory reasons were pretext. We note that Complainant did not appeal the dismissal of claim (5).
The Agency requested that the Commission affirm the AJ's sanction and its finding of no discrimination.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Sanctions
In the case at hand, the AJ cancelled the hearing as a sanction against Complainant for failing to show good cause for failing to comply with the AJ's orders. The Commission's position concerning sanctions was specifically set out in Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec.8, 2000):
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3); [EEOC Management Directive 110, 7-11 (Aug 15, 2015)]. Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. Id. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Department of Transportation, EEOC Appeal No. 01870232 (March 4, 1988) (citing McKelvey v. AT&T Technologies, Inc., 789 F.2d 1518 (11th Cir. 1986)).
Hale, at 2. An AJ must distinguish between conduct that does not warrant the imposition of a sanction and conduct that does. We note that the Representative misstated the standard for dismissal of a hearing by the AJ. He claimed that the AJ needed to find that Complainant engaged in "contumacious conduct." The correct standard is the one presented above from EEOC's MD-110.
In this case, the record showed that Complainant engaged in the conduct indicated by the AJ in the order to show cause. Complainant failed to show good cause, the AJ canceled the hearing. Upon review of the record, we find that the AJ's denial of complainant's hearing request under these circumstances was appropriate.
Claims of Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As for claim (1), the Agency asserted that the Supervisor (male, 35 years old, unknown prior protected activity) was tasked with controlling work hours for the first quarter of 2014, the period at issue. He noted that Complainant had limitations to one hour of walking, carrying a satchel and steps. He also stated that overtime mostly consisted of street delivery with satchels and not casing mail in the morning. Further, he noted that if Complainant was called in for work on a route, she could only carry for one hour and not the whole eight-hour day. Therefore, she was not considered qualified to come in on her non-scheduled day. In response to claim (2), the Acting Supervisor (male, 34 years old, unknown prior EEO activity) indicated that he issued the July 24, 2014 Letter of Warning (LOW1) because customers were calling in to the office and upset over misdeliveries. He asserted that he conducted an investigation and found Complainant in violation of several sections of the handbook including leaving mail in her case and misdelivering mail on her route. The record indicated that LOW1 was reduced pursuant to a union grievance. As for claim (3), Complainant alleged discrimination when the Postmaster (male, 44 years old, unknown prior EEO activity) issued Complainant the September 5, 2014 Letter of Warning (LOW2). He stated that the reason for LOW2 was that Complainant violated the Agency's runaway/rollaway policy by leaving her vehicle running while not being in the driver's seat. He declared that the ignition must be turned off, the key removed, the wheels pointed to the curb, and the park brake on when the carrier is not in the driver's seat. Complainant was aware of the Agency's policy but violated it, as such, the Postmaster issued LOW2. Finally, as to claim (4), the Manager (male, 55 years old, unknown prior EEO activity) averred that he issued Complainant the seven-day suspension due to her performance particularly her failure to follow instructions regarding wearing her satchel which he found to be a safety violation. He noted that he had given Complainant an investigative interview prior to the disciplinary action. The Postmaster concurred with the suspension but noted it was the subject of a union grievance which resolved the matter. Upon review, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant claimed that she was told that the management intended to "discipline [her] up to removal" based on her prior EEO activity. The Representative noted that evidence was not proffered during the hearing because the AJ cancelled the hearing process. Complainant argued that the reason for LOW1 was suspicious and noted that it was reduced to a discussion though the grievance procedure. As for LOW2, Complainant did not challenge the events but noted that the grievance procedure purged LOW2 as well. Finally, as to the suspension, Complainant argued that she should have been told to take a satchel with her when management was conducting its observation of her work performance. Again, Complainant did not deny the events occurred and that the suspension was purged by a union grievance. Upon review, we find that Complainant has made arguments. However, she failed to provide evidence to support her assertions. As such, we conclude that Complainant has not established that the Agency's reasons were pretext for unlawful discrimination and/or retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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 17, 2018
__________________
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.
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