Gloria D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 3, 20180120161551 (E.E.O.C. May. 3, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gloria D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120161551 Hearing No. 430-2015-00052X Agency No. 4K-290-0047-14 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 19, 2016, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Rural Carrier, R-07, at Eastover Post Office, Eastover, South Carolina. On July 14, 2014, Complainant filed her formal complaint alleging discrimination based on race (African- American), sex (female), age (over 40), and in reprisal for prior EEO activity when on March 14, 2014, she was issued a notice of removal dated March 11, 2014. After completion of the investigation of the complaint, Complainant requested an EEOC Administrative Judge (AJ) hearing on November 6, 2014. The AJ however denied the hearing 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. 0120161551 2 request and remanded the case to the agency for its final decision because Complainant failed to respond to the Agency’s discovery requests in a timely manner in accordance with her orders. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. On appeal, Complainant’s attorney contends that the AJ improperly denied the hearing request and the Agency improperly found no discrimination regarding the removal. ANALYSIS AND FINDINGS Initially, on appeal, Complainant contends that the AJ improperly denied her hearing request. We disagree. The record indicates that on November 19, 2014, the AJ provided to the parties her Acknowledgment Order with hearing instructions and orders. Therein, Complainant was clearly notified that if she failed to follow the orders set forth therein or other orders of the AJ, her hearing request would be denied. The record indicates that: on February 9, 2015, the Agency served Complainant its discovery requests; Complainant failed to respond; on March 19, 2015, the Agency filed a motion to compel to the AJ; and on July 10, 2015, the AJ, after considering Complainant’s reply, granted the Agency’s motion to compel and ordered Complainant to respond to the Agency’s discovery requests on or before July 24, 2015. The record reflects that at the relevant time, Complainant was represented by a non-attorney representative. On appeal, Complainant’s attorney contends that on July 20, 2015, her then non-attorney representative requested a seven-day extension via telephone and again later by email, but the AJ never issued an order on the extension. There is no evidence that the AJ granted the requested extension. Complainant’s attorney also contends that Complainant forwarded her discovery responses, within the time limit, to her then representative, who apparently assumed that Complainant had already sent the responses directly to the Agency. Complainant does not indicate that she ever sent her discovery responses to the Agency at the relevant time. On August 12, 2015, the Agency filed its motion for sanctions for Complainant’s failure to respond to its discovery requests. Upon receipt of the motion, Complainant sent both the Agency and the AJ a copy of her discovery responses on August 17, 2015. On January 27, 2016, the AJ issued an order granting the Agency’s motion for sanctions, denied Complainant’s hearing request, and remanded the case to the Agency for its final decision. Therein, the AJ noted that Complainant’s discovery response was due on July 24, 2015, and her August 17, 2015 response was untimely. Based on the foregoing, we find that the AJ’s denial of Complainant’s hearing request was proper. Turning to Complainant’s removal notice, 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 (EEO MD-110), Chap. 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 0120161551 3 submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the removal. Specifically, Complainant’s Postmaster (P1) stated that on February 25, 2014, P1 issued Complainant a letter informing her that unidentifiable mail was found at her case again. Therein, P1 also informed Complainant that she was previously instructed that any mail left at her case must be identified as to the reason why it was being left, the date the mail was first left at the unit, and the employee’s initials. On the same day (February 25, 2014), in the afternoon, P1 asked Complainant if she was ready for P1 to count her collection mail. Complainant then became confrontational concerning P1’s earlier letter to her about unidentifiable mail. P1 indicated that Complainant became very argumentative, loud, and disruptive on the workroom floor despite P1’s instruction not to act that way. P1 stated that she became afraid Complainant would attack her, P1 began to walk away toward P1’s office, and Complainant then yelled at P1 saying that she was recording the conversation. Based on the foregoing incident, stated P1, Complainant was issued the March 11, 2014 notice of removal at issue for her improper conduct on February 25, 2014. Therein, P1 noted that P1 considered Complainant’s prior disciplinary actions, i.e., her December 5, 2013 notice of removal which was subsequently reduced to a time-served suspension, and her November 8, 2013 letter of warning. P1 denied that she was aware of Complainant’s prior EEO activity at the relevant time or that the removal action was based on any discrimination as Complainant alleged. Complainant claimed that at the relevant time she was trying to seek clarification and it was P1 who replied in a loud, hostile manner. The record indicates that an identified clerk submitted a statement indicating that on February 25, 2014, he witnessed the incident at issue. Specifically, the clerk stated that: at 3:15 pm on the date of the incident, he saw P1 and Complainant talking; Complainant then became very argumentative with P1; P1 told her not to talk to P1 in that manner; as P1 continued to talk, Complainant interrupted and shouted at P1; and Complainant also told P1 that she was recording the conversation. Complainant indicated that one female and two male coworkers also were disciplined regarding unidentifiable mail but were not terminated. However, Complainant failed to show that those coworkers too had confrontations with P1 resulting in a charge of improper conduct. We note that the removal action was not based on Complainant’s failure to identify her mail but rather it was based on her improper conduct during the confrontation with P1. Based on the foregoing, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. 0120161551 4 On appeal, Complainant submits an identified rural carrier’s statement dated October 27, 2015, as his sworn statement. In that statement, the carrier indicated that P1 admitted to him that she retaliated against Complainant because she was tired of Complainant filing EEO complaints and grievances. Upon review, we find that the carrier’s statement does not constitute a sworn statement since the carrier failed to clearly acknowledge therein that the facts within the statement were true to his knowledge and being made under “penalty of perjury†or some similar indication that there would be consequences for submitting a false statement. There is a signature by another person on the statement, but that signature, if it is supposed to be a notary, does not contain a notary stamp. Even if the statement were a valid affidavit, there is no explanation why this person was not named by Complainant as a person to be interviewed by the investigator. Furthermore, there is no indication that this statement was provided to the Agency prior to the issuance of the Agency decision. Thus, the Agency was never properly given the opportunity to address and consider this statement. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 0120161551 5 (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 May 3, 2018 Date Copy with citationCopy as parenthetical citation