[Redacted], Clora D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020003698 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clora D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020003698 Hearing No. 520-2017-00343X Agency No. 4B-100-0124-16 DECISION On March 9, 2020, 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 February 11, 2020, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are: (1) whether it was an abuse of discretion to dismiss Complainant’s hearing request as a sanction; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on religion, disability, and/or reprisal. 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. 2020003698 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a CC-01 City Carrier at the Agency’s Lenox Hill South Carrier Station facility in New York, New York. On September 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of religion (unspecified), disability (physical), and reprisal for prior protected EEO activity when: 1. In August 2016, she was assigned work outside of her medical restrictions and accused of abandoning her assignment; 2. On unspecified date(s), her work hours were reduced and her days off were changed; and 3. On unspecified date(s), she was denied religious accommodation. When Complainant did not respond to the Agency’s October 18, 2016, letter requesting that she clarify her allegations, the Agency accepted the claims as framed above for investigation. Complainant did not provide an affidavit as requested by the EEO investigator. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On February 14, 2018, the AJ assigned to the case (AJ1) issued a Post-Conference Order, in which he ordered Complainant to provide typed, detailed responses to the EEO investigator’s questions by March 5, 2018. AJ1 noted that failure to comply with the order would result in the dismissal of Complainant’s hearing request. Complainant did not respond. Complainant’s case was reassigned to a different AJ (AJ2), who issued an Order to Show Cause on October 15, 2019. AJ2 gave Complainant until October 25, 2019, to show why her request for hearing should not be dismissed for failure to comply with the Post-Conference Order. AJ2 also asked Complainant to provide a status update on the case. On October 24, 2019, Complainant requested a one- or two-day extension to respond, stating that she had not received the Order to Show Cause until October 21, 2019, because of an out-of-date address. AJ2 granted Complainant’s extension request. Complainant subsequently mailed AJ2 a thick packet of disorganized materials. According to AJ2, Complainant’s submission did not demonstrate previous compliance, did not address her failure to comply, and did not provide a status update. AJ2 dismissed Complainant’s hearing request as a sanction and remanded the complaint to the Agency. 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. The instant appeal followed. On appeal, Complainant accuses the Agency of stalking her and tampering with her mail, which Complainant argues prevented her from fully complying with the orders of the AJ. Complainant contends that she is prepared to prosecute her complaint and requests a hearing. 2020003698 3 The Agency did not submit a statement or brief 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 Hearing Request as a Sanction The AJ dismissed Complainant’s hearing request as a sanction. 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). 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 information offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. The Commission has held repeatedly that sanctions must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Ward B. v. U.S. Postal Serv., EEOC Appeal No. 2019001570 (May 12, 2020); Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission's interest lies in deterring the underlying conduct of the non-complying party and protecting its administrative process from abuse by either party to ensure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). The factors pertinent to “tailoring” a sanction, or determining whether a sanction is, in fact, warranted, include the following: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Chere S. v. Soc. Sec. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018); see also Royal, EEOC Request No. 0520080052; Gray, EEOC Appeal No. 07A50030; Vovsest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). 2020003698 4 On appeal, Complainant states that she was prevented from complying with the AJs’ orders because of alleged stalking and mail tampering by the Agency, although she has not provided any supporting evidence. During the hearing process, when Complainant informed AJ2 about the delay in receiving his Order to Show Cause, he granted her request for an extension. Nonetheless, the response Complainant mailed to AJ2 did not demonstrate previous compliance with AJ1’s order, explain her failure to comply, or provide the requested status update. Moreover, at no point before, during, or after the hearing process has Complainant answered the EEO investigator’s questions. Based on the circumstances of the case, we find that it was not an abuse of discretion for AJ2 to dismiss Complainant’s hearing request as a sanction. Discrimination Based on Religion, Disability, and Reprisal To prevail in a disparate treatment claim, 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 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 802 n. 13. 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 she was assigned work outside of her medical restrictions and accused of abandoning her assignment. Complainant’s supervisors denied assigning Complainant work outside of her medical restrictions. One supervisor (S1) stated that one-time Complainant was casing mail for another route and complained that she did not have tubs, but S1 stated that Complainant was allowed to have tubs and noted that there were about 20 stacked tubs near where Complainant cased her own route. S1 averred that Complainant complained on another occasion that another employee borrowed Complainant’s utility cart, or “baby carriage,” but S1 noted that the other employee brought it back after a few minutes. According to S1, on another occasion Complainant wanted to use another Carrier’s chair, and S1 told Complainant she needed to use her own chair. S1 denied that Complainant requested a chair for her disability. We find that Complainant has not established that she was assigned work outside of her medical restrictions. Regarding Complainant’s allegation that she was accused of abandoning her assignment, S1 stated that, on one occasion, she directed Complainant to case another route. According to S1, Complainant announced that she was going to leave and go home instead of casing another route. S1 averred that she told Complainant that she needed to case at least one of the eight open routes and that, if she left without approved leave, she would be charged with abandoning her assignment. 2020003698 5 S1 stated that Complainant cased the route. We find that management has proffered a legitimate, nondiscriminatory reason for informing Complainant that she could be charged with abandoning her route, and we find that Complainant has not established that the Agency’s reason is pretextual. Complainant also alleged that her work hours were reduced and her days off were changed. The Agency’s legitimate, nondiscriminatory reasons for changing Complainant’s days off from Saturday and Sunday to Sunday and a rotating day off were that the regular days off of her bid assignment were Sunday and a rotating day and that her days off reverted to those of her bid assignment when her workers compensation claim was denied. Regarding the reduction in hours, management’s legitimate, nondiscriminatory explanation was that Complainant was not paid when she refused to work on Saturdays or when she declined work within her medical restrictions such as hanging up bags or picking up waste. Complainant has not established that these legitimate, nondiscriminatory reasons were a pretext for discrimination. To the extent that she is alleging that she was denied a reasonable accommodation for her disability, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). We find that Complainant has not established that she was denied a reasonable accommodation. Complainant also alleged that she was denied religious accommodation. Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires a complainant to demonstrate that: (1) she has a bona fide religious belief, the practice of which conflicted with their employment; (2) she informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Mo.-Kan.-Tex. R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). This allegation appears to relate to Complainant not having Saturday as one of her regular days off. However, the record is totally devoid of evidence about Complainant’s religious beliefs or practices, and none of the managers interviewed were aware of Complainant’s religion or any conflict between her religious beliefs and her employment. 2020003698 6 S1 stated that, when Complainant complained about working on Saturdays, she told Complainant that she should submit a change of schedule form if she wanted to have Saturdays off. According to the supervisor, Complainant never submitted the change of schedule form. We find that Complainant has not established by preponderant evidence that she was denied accommodation for her religion. 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020003698 7 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 August 16, 2021 Date