[Redacted], Estell L.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2019001532 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estell L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2019001532 Hearing No. 560-2016-00226X Agency No. 4J-630-0072-15 DECISION On November 21, 2018, 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 October 18, 2018, 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 VACATES the final Agency decision and REMANDS the case for a hearing. ISSUE PRESENTED Complainant’s attorney (Attorney) requested a postponement of the September 10, 2018 hearing in order to tend to her father’s affairs. The Attorney’s father had passed shortly before the hearing, following a recent terminal diagnosis. The issue presented is whether the Administrative Judge’s (AJ) refusal to postpone the hearing amounted to an abuse of discretion. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services and Distribution Associate at the Agency’s St. Louis-Oldham Station in St. Louis, Missouri. 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. 2019001532 2 On July 22, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (African- American), sex (female), disability (stress/situational stress and adjustment disorder), and reprisal for prior protected EEO activity with respect to work conditions, time and attendance matters, disciplinary actions, and wrongful termination, as evidenced by the 29 original claims that formed the bases of her complaint. 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 AJ. On April 23, 2016, Complainant timely requested a hearing. On June 11, 2018, the AJ scheduled a pre-hearing conference for July 26, 2018, and a multi-day hearing to begin on September 10, 2018. On July 20, 2018, the Attorney requested a two-week extension of the parties’ filing deadlines citing her father’s recent terminal cancer diagnosis (the day prior) and emergency surgery. The request was unopposed and granted. The pre-hearing conference was rescheduled for August 23, 2018. On August 23, 2018, during the pre-hearing conference, the Attorney requested that the AJ postpone the September 10, 2018 hearing date. The Attorney stated that she was dealing with an extremely difficult family situation and needed some time to care for her terminally ill father. Complainant relayed her severe anxiety and fears in proceeding in the matter without her attorney. The Agency opposed the postponement request citing the age of the case, and the difficulty of rescheduling ten approved witnesses. The AJ declined the request and reminded Complainant of her option to withdraw her hearing request and seek a final Agency decision (FAD). The September 10, 2018 hearing remained. On August 24, 2018, Complainant withdrew her hearing request, and requested a FAD. Later in the day, Complainant retracted the request, and asked if she could represent herself during the hearing if the AJ was still unwilling to postpone. Complainant stated that she felt ill prepared to represent herself but ultimately did not want to lose her hearing opportunity. Moreover, Complainant believed the FAD would not give her a fair chance. The AJ acknowledged the request. The September 10, 2018 hearing remained scheduled. On August 28, 2018, the Attorney officially withdrew her representation to care for her terminally ill father, who passed away shortly after. On September 4, 2018, Complainant renewed her request to postpone the hearing. Complainant emailed the AJ and noted that the Attorney’s father had recently passed away. Considering this news, she requested a postponement of the September 10, 2018 hearing date, acknowledging that there were unique circumstances and good reason to provide a postponement. Complainant stated that her attorney represented her for two years, and she wished for her to continue representing her. The Attorney was a solo practitioner and had no one to take over the matter when her father became ill. 2019001532 3 The Attorney requested to postpone the hearing while she set her father’s affairs in order. Given the complexity of the matter, and the hearing being scheduled just six days away, the Attorney requested just a short postponement so that Complainant would not need to proceed pro se. The AJ responded by requesting that Complainant speak with her over the phone. Shortly after the phone call, Complainant again withdrew her hearing request, and requested a final Agency decision. Consequently, on October 18, 2018, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that it subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant’s Appeal Complainant, represented by her attorney, submitts a detailed brief in support of the appeal. The Attorney argues that the AJ abused her discretion when she denied Complainant’s request to postpone her hearing despite having good cause, both at the August 23, 2018 pre-hearing conference, and again in her September 4, 2018 request. In support of her request, the Attorney cites to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 7, §III(D)(16) (Aug. 5, 2015), and Eldakdoky v. Dep’t of Agric., Appeal No. 0120090553 (Feb. 5, 2009). In Eldakdoky, an illness of a close family member required the complainant to be out of the country. The AJ in the Eldakdoky matter did not issue complainant, who was proceeding pro se, a “Notice to Show Cause” as to why the hearing process should be held in abeyance. Instead, the AJ immediately concluded that complainant's explanation for leaving the country was inadequate and cancelled the hearing process. The Commission found that the AJ abused his discretion and remanded for a hearing. Eldakdoky, supra. The Attorney argues that given the unique circumstances, here, the AJ clearly abused her discretion by declining the request. The Attorney states that given the extenuating and unique circumstances, there was good cause to postpone the hearing, specifically the terminal diagnosis of her father, and death. Moreover, during the September 4, 2018 request, the Attorney notes that her father had passed and that she only needed a short postponement to gather his affairs in order. The Attorney argues that she had presented good cause to postpone the hearing date, and the AJ’s refusal amounted to abuse of discretion. Additionally, the Attorney argues that it was inappropriate of the AJ to continually pressure Complainant to withdraw her hearing request and seek a FAD, especially when Complainant made her fears and anxieties clearly known. The Attorney notes that after speaking with the AJ on September 4, 2018, Complainant felt pressured to withdraw her hearing request, despite the good cause presented for postponement. Complainant feared the FAD would be unfair to her, but given the AJ’s unwillingness to postpone, and Complainant’s anxieties of self-representation, she opted for the FAD instead. 2019001532 4 The Attorney argues that given the circumstances, the AJ clearly abused her discretion when she refused to postpone the hearing on August 23, 2018, and then certainly again on September 4, 2018. In the alternative, the Attorney argues that the Commission should reverse and remand the FAD as the Agency clearly subjected Complainant to discrimination and retaliation. Agency Response In response, the Agency argues that the AJ did not abuse her discretion when she denied Complainant’s postponement request. As of the August 23, 2018 date, the Agency contends that it would not be appropriate to indefinitely postpone the hearing request, and that it was therefore not an abuse of discretion when the AJ declined to postpone the hearing. As for the September 4, 2018 date, the Agency argues that the record clearly demonstrated that Complainant had withdrawn her hearing request and was seeking a FAD. The Agency claims that Complainant voluntarily withdrew the request, and that she cannot now argue abuse of discretion simply because she is unhappy with the results. The Agency also notes that Complainant’s appellate brief failed to address any purview other than retaliatory discrimination and harassment, and that therefore, Complainant abandoned her discrimination and harassment claims predicated on race, sex, and disability. The Agency then provides a detailed account of the complaint and reiterated that Complainant was not subjected to discrimination or retaliation. The Agency asserts that based on the record, the Commission should affirm the Agency’s final decision. ANALYSIS AND FINDINGS We first address Complainant's contentions on appeal, namely, whether the AJ abused her discretion by not postponing the hearing. The Commission's regulations afford broad authority to AJs. See 29 C.F.R. §1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 7, § III(D) (Aug. 5, 2015). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 (Jun. 3, 2016). Nonetheless, the Commission has found abuse of discretion by the AJ under a variety of circumstances. See Frederick A. v. Dep’t of the Navy, EEOC Appeal No. 0120140377 (June 15, 2016) (dismissing complaint where Complainant's partial response did not rise to the level of contumacious conduct); Madaris v. U.S. Postal Serv., EEOC Appeal No. 0120131585 (Aug. 13, 2013) (taking testimony by telephone absent exigent circumstances or a joint request from the parties); Duckwiley v. Gen. Serv. Admin., EEOC Appeal No. 0120103514 (Feb. 4, 2011) (excluding claim accepted for processing by the Agency and referred for investigation); Santos v. Dep’t of Agric., EEOC Appeal No. 0120064263 (Sept. 26, 2008) (issuing a decision without a hearing when material facts remained in genuine dispute). 2019001532 5 In support of her claim that the AJ abused her discretion by refusing the postponement request, despite good cause, Complainant cited to Eldakdoky v. Dep’t of Agric., Appeal No. 0120090553 (Feb. 5, 2009). In Eldakdoky, the pro se complainant voluntarily informed the agency and the AJ, on August 2, 2007 that he would be out of the country due to a family emergency until September 25, 2007. Id. When the complainant sent this notification out, he was not asking for a postponement, and there was nothing scheduled during his absence. However, on August 10, 2007, the AJ cancelled the hearing and remanded the complaint to the agency for a final decision on the basis that “[c]omplainant did not give any details for the undersigned administrative judge to make a finding that he stated good cause to hold this hearing procedure in abeyance while he is out of the country.” Id. The AJ refused to reinstate the hearing, and eventually a final Agency decision was issued. Id. On appeal to the Commission, we determined that the AJ had improperly cancelled the hearing and remanded the matter to the agency. Id. The Commission also determined that even assuming that Complainant’s August 2, 2007 notification was a request to postpone the hearing, he had clearly demonstrated good cause in accordance with EEO MD-110, Ch. 7, § III(D) (Aug. 5, 2015). Specifically, the illness of a close family member. Id. Here, Complainant initially made her hearing request on April 23, 2016. On August 23, 2018, nearly two years later, the AJ held the first pre-hearing conference. During this pre-hearing conference, Complainant made her first request to postpone the hearing. At that time, the hearing was scheduled for September 10, 2018. Complainant clearly provided a good cause reason to postpone the hearing. Specifically, her attorney’s need to take leave to care for her terminally ill father, who had in July 2018, received a diagnosis of late stage, terminal cancer. However, without more specificity as to why the hearing could not be postponed, the AJ declined the request and reminded Complainant of her option to withdraw her hearing request and seek a FAD. As noted in her appeal affidavit, Complainant stated that she was in a state of distraught, did not want to lose her “day in court,” felt overwhelmed at the prospect of representing herself pro se, and did not believe she would get a fair chance through a FAD. Not wanting to lose her hearing date, Complainant moved forward as pro se. However, by September 4, 2018, the Attorney informed the AJ and Complainant that her father had passed away, and that she only needed a short period to grieve and tend to affairs before she would be ready to represent Complainant again. Considering the news, Complainant sought to postpone the September 10, 2018 hearing. However, Complainant asserted that during a September 4, 2018 phone call with the AJ, the AJ pressured Complainant to consider the difficulties of representing herself pro se, declined to postpone the hearing, and again suggested that she consider requesting a FAD instead. Shortly after the phone call, Complainant requested a FAD. Given the extenuating circumstances, we agree with Complainant that there was good cause to postpone the hearing. Similar to Eldakdoky, supra, the Attorney had presented good cause for postponing the hearing, specifically, at first, the terminal diagnosis of her father, and then, the actual passing of her father. While the Attorney did not provide an exact time frame, and only stated a “short” time, it is clear from the record that a postponement would have been suitable given the situation. 2019001532 6 The record clearly demonstrates the AJ’s repeated refusals to postpone the hearing, and notably without providing Complainant any “Notice to Show Cause.” In reviewing this matter, we also take into consideration Complainant’s assertion that she felt pressured to forfeit her hearing because of the AJ’s warnings of self-representation. Considering the number of claims here, the complexity of the file, and the lack of a sound explanation from the AJ why a postponement was refused, at least during the September 4, 2018 request, we find that Complainant established that the AJ abused her discretion in refusing to postpone the hearing. CONCLUSION Accordingly, the Commission VACATES the Agency's final decision and REMANDS the matter for a hearing pursuant to this decision and the Order of the Commission, below. ORDER The Agency shall submit to the Hearings Unit of the appropriate EEOC field office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2019001532 7 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 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). 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. 2019001532 8 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 (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, Director Office of Federal Operations June 9, 2021 Date