[Redacted], Marine V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 14, 2021

Appeal No. 2020003721 (E.E.O.C. Sep. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marine V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003721 Hearing No. 480-2019-00078X Agency No. 1F-901-0116-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 26, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues are whether the Administrative Judge abused his discretion when he dismissed Complainant’s hearing request; and whether Complainant established that the Agency discriminated against her based on her age, color, national origin, race, religion, sex, or in reprisal for prior protected EEO activity, when it issued her a notice of removal. 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. 2020003721 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s International Service Center in Los Angeles, California. On February 1, 2018, Complainant’s supervisor (S1) (age 59, African American, Black, Christian, female, American) and an Acting Manager Distribution Operations (AMDO) (age 51, African American, Brown, unspecified religion, female, American) issued Complainant a Notice of Removal for failure to maintain regular attendance. Specifically, Complainant had 152 hours of absence without leave from November 3, 2017, through December 27, 2017. The notice indicated that Complainant was sent Duty Status letters on November 7, and 14, 2017, with instructions to provide documentation to cover her absences, but Complainant did not respond. Complainant was also instructed to attend investigative interviews on November 11, and 16, 2017, but she failed to attend the meetings or inform management that she was unable to attend. The Agency noted that Complainant had a prior 14-day suspension for attendance issues, and that Complainant’s removal was in the best interest of the organization. Report of Investigation (ROI) at 131-4. On May 21, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), religion (Christian), national origin (American), sex (female), color (“Caramel”), age (55), and in reprisal for prior protected EEO activity, when on February 1, 2018, Complainant was issued a Notice of Removal, which was effective on March 3, 2018. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On March 16, 2019, the Agency filed a Motion to Dismiss as a sanction due to Complainant’s contumacious conduct and her refusal to respond to the Agency’s discovery requests. For example, Agency counsel stated that when Complainant called him, he informed her that he was unable to speak with her because she had a representative, and Complainant repeatedly told him to “kiss [her] ass,” and that she would “go postal,” if required to respond to the Agency’s discovery requests. The Agency also noted that the deadline had passed and Complainant had not submitted her responses. The AJ ordered Complainant to provide an explanation for her conduct, and Complainant timely responded. The AJ subsequently dismissed Complainant’s hearing request, based on her failure to respond to the Agency’s discovery requests and interrogatories by the original deadline, without justification, and her repeated use of inappropriate language and threats not to engage in the discovery process. The AJ remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed a prima facie case of discrimination and found that management officials articulated legitimate, nondiscriminatory reasons for removing Complainant due to her absences. 2020003721 3 The Agency then found that Complainant provided no testimony, or any other evidence, to show that the reasons were pretexts for discrimination.2 The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal, and she submitted a statement and documents in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Through her non-attorney representative, Complainant argues that the Agency retaliated against her for her prior complaint, which resulted in her return to work. Complainant asserts that she is entitled to approximately $400,000 in backpay after she successfully appealed her first termination.3 Complainant requests a hearing for her second removal. The Agency asserts that Complainant has falsely claimed she is owed backpay and that contending that she is owed a remedy is not the same as proving her most recent termination was discriminatory. The Agency requests that the Commission affirm its final decision. 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 (EEO MD-110), at 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 submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2 The EEO Investigator noted that she interviewed Complainant and sent her a draft affidavit to sign, but that Complainant did not return a signed affidavit. ROI at 38. 3 The record shows that the parties entered into a settlement agreement on September 28, 2017, and Complainant’s prior termination was reduced to a 7-day suspension, without any backpay or benefits. ROI at 82. 2020003721 4 ANALYSIS AND FINDINGS Dismissal of Hearing Request To the extent that Complainant argues that the AJ erred when he dismissed her hearing request, we note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and 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 Gray v. Dep’t of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v Dep’t of the Treasury, EEOC Appeal No. 07A00015 (Jul. 13, 2001); Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission has consistently held that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances. One such circumstance is when the complainant engages in contumacious conduct, not merely negligence. See Cassey B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019004838 (Sept. 24, 2020) Request No. 2021000172 (June 9, 2021); Cecile T. v. Dep’t of the Treasury, EEOC Appeal No. 2019002373 (Sept. 22, 2020); Carolyn M. v. U.S. Postal Serv., EEOC Request No. 2019004843 (Mar. 10, 2020). Contumacious behavior or disruptive conduct may include any unprofessional or disrespectful behavior; degrading, insulting, or threatening verbal remarks or conduct; the use of profanity; or conduct engaged in for the purpose of improperly delaying the hearing. A finding of contumacious conduct or disruptive behavior may be based on a series of disruptive incidents, a pattern of acts, or a single sufficiently obstructive episode. Normally, any pattern should be manifest within a single case. EEO MD-110 at Chap. 7, § V.A.3. See also Santo D. v. Dep’t of Homeland Security, EEOC Appeal No. 0120181017 (Feb. 11, 2020). The record shows that, on October 29, 2019, the AJ ordered Complainant to show good cause why she failed to respond to the Agency’s propounded discovery by the deadline; why she used improper language with Agency counsel; and why she orally refused to respond to the Agency’s propounded discovery. The AJ noted that Agency counsel stated that Complainant repeatedly phoned him and stated, for example, that he was a “sorry ass” lawyer; a “piece of shit”; and a “motherfucker.” Complainant also stated that Agency counsel had “lost his mind” if he thought that she would respond to “the motherfucking questions,” and that she did not want to have to “go postal.” 2020003721 5 In her response to the AJ’s order, Complainant stated that she sent her discovery responses to her representative, but she forgot to include any payment and her representative failed to take further action. Along with her explanation, Complainant provided the AJ with her responses to the Agency’s discovery requests. We find that the AJ did not abuse his discretion when he determined that Complainant did not show good cause for her actions. Complainant conceded that the Agency did not timely receive her responses to its discovery requests. In addition, it is undisputed that Complainant directed profanity at Agency counsel and verbally refused to provide her discovery responses. We find that she engaged in contumacious conduct. As such, the AJ did not abuse his discretion when he dismissed Complainant’s hearing request as a sanction due to her failure to show good cause for her actions during the processing of her EEO complaint. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, color, national origin, race, religion, sex, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. S1 stated that she issued the notice of removal due to Complainant’s pattern of discipline, which included a prior 14-day suspension, and that a removal was the next step in progressive discipline. ROI at 69, 81. AMDO stated that Complainant was informed that the discipline was based on her attendance. ROI at 89. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were 2020003721 6 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). We note that Complainant did not provide any arguments regarding the merits of her claim on appeal. As for her arguments regarding an entitlement to backpay for a prior termination, they are unrelated to the removal claim presently before us. In addition, there is no evidence in the record showing that Complainant responded to the Agency’s Duty Status letters or that she attended the scheduled investigative interviews to explain her absences. As such, we find that Complainant did not show that the proffered reasons were pretexts for discrimination. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s action. Complainant simply offers unsupported allegations that there is a “prejudice” against Black females and that management officials are jealous that she is married to a Christian minister. ROI at 126. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, color, national origin, race, religion, sex, or in reprisal for prior protected EEO activity, when it issued her a notice of removal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ did not abuse his discretion when he dismissed Complainant’s hearing request. We AFFIRM the Agency’s final decision finding no discrimination. 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. 2020003721 7 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. 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. 2020003721 8 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 September 14, 2021 Date