Horace H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120171205 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horace H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171205 Hearing No. 460-2016-00160X Agency No. 4G-770-0297-15 DECISION On February 13, 2017, 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 January 23, 2017, 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused her discretion in dismissing Complainant’s hearing request as a sanction for failure to comply with the AJ’s orders; and (2) whether the preponderance of the evidence establishes that Complainant was subjected to discrimination based on race, religion, disability, and/or age. 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. 0120171205 2 BACKGROUND At the time of events giving rise to this complaint, Complainant, a 42-year-old African-American, worked as a Rural Carrier Associate (RCA) at the Agency’s First Colony Station in Sugar Land, Texas. Complainant stated that he was Christian. According to Complainant, he had total hip replacements on both sides, which affected the speed at which he was able to work. According to the record, Complainant had filed two EEO complaints prior to the instant complaint. On September 12, 2015, the Postmaster (S1) issued Complainant an emergency placement in a non-pay status for safety reasons after he was involved in an altercation on the work floor with a coworker (C1). According to S1, there had been a discussion with employees about the Agency’s Zero Tolerance policy two or three days before the incident. S1 stated that she also issued C1 an emergency placement in a non-pay status. According to Complainant, C1 falsely reported that Complainant was involved. An Acting Supervisor, Customer Services (S2) stated that Complainant and C1 had an argument. Complainant alleged that management failed to properly investigate the incident. Complainant stated that he was assigned fewer hours than his RCA coworkers. According to Complainant, his RCA coworkers were given more hours because they received a lower hourly rate of pay than he did. Complainant averred that RCA work is supposed to be assigned by seniority and then by the Leave Replacement Assignment Route (“the matrix”). Complainant stated that management abused their authority and did not use the matrix system. A Supervisor, Customer Services (S3) stated that RCA assignments were made first by the matrix and then by seniority. According to the record, Complainant was assigned 316.31 hours of work between August 22, 2015, and November 27, 2015. During the same period, other RCAs were assigned between 46.59 and 794.85 hours of work. A Hispanic RCA received 56.72 hours during this period, and several RCAs under the age of 40 received fewer hours than Complainant did. A number of African- American RCAs received more than 316.31 hours of work, and some RCAs who were older than Complainant was received more hours than he did. On February 4, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), religion (Christian), disability (bilateral total hip replacements), age (42), and reprisal for prior protected activity when: 1. On September 12, 2015, he was placed off the clock in a non-pay status for seven days; and 2. On an ongoing basis, he has received fewer hours than his coworkers. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant requested a hearing, but on December 15, 2016, the AJ dismissed the hearing request as a sanction for failing to comply with the AJ’s orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 0120171205 3 The Agency’s final decision dismissed Complainant’s complaint on mootness grounds pursuant to 29 C.F.R. § 1614.107(a)(5). The Agency noted that on October 28, 2015, a Step II Grievance Resolution was reached regarding Complainant’s first claim, and the Agency paid Complainant a lump sum payment of $442.86 for the seven days he was placed off the clock. The Agency also noted that on December 15, 2015, a Step II Grievance Resolution was reached regarding Complainant’s second claim, and the Agency paid Complainant a lump sum payment of $300.00. The Agency found that both claims were moot as there was no reasonable expectation that the violations would recur and because interim relief had completely eradicated the effects of the alleged violations. In the alternative, the Agency’s final decision addressed the merits of the complaint. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant requests that his hearing request be reinstated. According to Complainant, he was unable to comply with the AJ’s orders because November and December are the busiest months of the year for the Agency. Complainant also notes that he was hospitalized on December 22, 2016. The Agency makes no contentions in response to Complainant’s appeal. ANALYSIS AND FINDINGS 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”). Dismissal of Complainant’s Hearing Request 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). The sanctions available to an AJ for failure to provide requested relevant information 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. See Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). 0120171205 4 These 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 serve this purpose, 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. Dep’t of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988). Here, Complainant failed to submit a pre-hearing conference report by December 14, 2016, as ordered by the AJ. On appeal, Complainant contends that he was unable to prepare his pre-hearing conference report because November and December are busy months for the Agency. However, this deadline was agreed to by the parties during the initial status conference on October 3, 2016, and there is no evidence in the record that Complainant requested an extension before missing the deadline. Furthermore, although Complainant notes that he was in the hospital on December 22, 2016, his reported hospitalization occurred after the deadline had already passed, and Complainant has not provided evidence that he was incapacitated and unable to comply with the AJ’s order. Accordingly, we find that it was not an abuse of discretion for the AJ to dismiss Complainant’s hearing request. The Merits of Complainant’s Complaint In view of the Agency’s decision on the merits of Complainant’s complaint, we will not address the Agency’s dismissal of the claims on mootness grounds. See Lela M. v. U.S. Postal Serv., EEOC Appeal No. 0120160852 (April 4, 2018). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant alleged that he was subjected to discrimination when he was issued an emergency placement in a non-pay status. We may dispense with the prima facie inquiry for this claim because the Agency has provided a legitimate, nondiscriminatory reason for its actions, which is that Complainant reportedly engaged in an altercation with a coworker on the workroom floor. Although Complainant contends that C1 falsely implicated him, S2 corroborated Complainant’s involvement in the argument. 0120171205 5 Complainant has failed to establish by the preponderance of the evidence in the record that the Agency’s legitimate, nondiscriminatory reason is a pretext designed to mask discriminatory or retaliatory animus. Complainant also alleged that he was discriminated against when he was assigned fewer hours than his RCA coworkers. With respect to this claim, Complainant has failed to establish a prima facie case of discrimination because other African-American RCAs and other RCAs over the age of 40 received more hours than Complainant, while some RCAs outside of his protected class were assigned less hours than Complainant. Assuming arguendo that Complainant established a prima facie case, the Agency has provided a legitimate, nondiscriminatory explanation for its assignment decisions, which is that the matrix is consulted before seniority. We find that the preponderance of the evidence in the record does not establish that the proffered legitimate, nondiscriminatory reason is pretextual. 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 because the AJ did not abuse her discretion in dismissing Complainant’s hearing request as a sanction for failure to comply with the AJ’s orders and because the preponderance of the evidence in the record does not establish that discrimination occurred. 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. 0120171205 6 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation