0120162574
07-17-2018
Santo D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Santo D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120162574
Hearing No. 480-2013-00062X
Agency No. 4F-926-0026-11
DECISION
On August 10, 2016, Complainant filed a premature appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), following the sanction order by an Equal Employment Opportunity Commission Administrative Judge (AJ) denying him a hearing. Thereafter, the Agency mailed to Complainant a final Agency decision (FAD) dated January 31, 2017, finding no discrimination on 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.
The FAD mailing was returned to the Agency, marked "RETURN TO SENDER DECEASED UNABLE TO FORWARD...." We have received no confirmation that Complainant is deceased, nor any further communications from him. We exercise our discretion to accept Complainant's appeal, which we deem to have been perfected after the FAD was issued. On appeal, the parties submit no argument.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Carrier (City), A Q-CC-01/O at its North Carrier Annex (under the Long Beach Post Office) in Long Beach, California.
On December 18, 2010, Complainant filed an EEO complaint, as amended, alleging in relevant part that the Agency discriminated against him based on reprisal for prior protected EEO activity under Title VII when:
1. on October 30, 2010, he was issued a Notice of Removal, effective December 17, 2010, which was superseded by Notice of Removal dated December 7, 2010, effective December 24, 2010 (to correct the first two-year date typos from 2009 to 2010); and
2. he was issued a separate Notice of Dismissal on a different ground dated January 14, 2011.
Following an investigation, the Agency dismissed the complaint under 29 C.F.R. � 1614.107(a)(7) for failure to cooperate. It reasoned that it sent Complainant a request to do an investigatory affidavit, and despite being warned in writing that failure to do so could result in the dismissal of his complaint, he did not submit an affidavit.
In EEOC Appeal No. 0120113734 (Sep. 12, 2012), the Commission reversed. It reasoned that the Agency did not show that Complainant engaged in contumacious conduct. The Commission found that there was sufficient information in the record to permit the Agency to continue the investigation by collecting evidence from management witnesses without Complainant's affidavit because the counselor's report had sufficient information to allow management to respond his allegations. The Commission concluded that the Agency should have completed the investigation without Complainant's affidavit, and ordered the Agency to do so.
Since the Agency previously completed the investigation, including collecting affidavits and evidence from management, on remand in October 2012, it provided Complainant with a copy thereof and notice of his right to request a hearing before an AJ. Complainant requested a hearing, and his complaint was assigned to an AJ.
In discovery, the Agency filed a motion to compel Complainant to respond to specified discovery requests it made. In March 2016, the AJ granted the motion and ordered Complainant to complete his response to the Agency's discovery requests, including the Agency's Request for Admission numbers 8-26, and warned that failure to do so within a specified time could result in sanctions up to and including dismissal or default judgment. While Complainant responded on May 7, 2016, by in part asserting the AJ lost his objectivity and asking the AJ to recuse himself, he failed to further respond at all to the Agency's discovery requests. In May 2016, the AJ sanctioned Complainant, in relevant part, by deeming him to have admitted Agency's Requests for Admissions numbers 8-26. This included admitting that he committed the infractions cited in both notices of removal (admission numbers 20 and 26).
Thereafter, on December 20, 2016, Complainant failed to appear at a telephonic settlement conference, despite the AJ's scheduling order to the parties that they do so. By sanction order dated December 21, 2016, the AJ ordered the Agency to issue a FAD without a hearing. The AJ found that Complainant never requested that the settlement conference be rescheduled and his failure to appear caused the AJ to spend time preparing to attend a settlement conference that did not occur because he did not appear. The AJ found that Complainant repeatedly ignored his orders and generally demonstrated an inability to effectively participate in the EEOC hearings process. Citing to the EEOC hearings Acknowledgement and Order in November 2012, and his referenced March 2016 and May 2016 orders, the AJ found that Complainant was repeatedly warned that failure to follow AJ orders may result in sanctions, with one of these warnings giving as an example dismissal or default judgment, and another, accompanying the adverse inference discovery order, that further failure to abide by AJ orders could result in "additional and more severe sanctions."
The instant appeal followed. Thereafter, as ordered by the AJ, the Agency issued a FAD. It found no discrimination.
In the first removal notice, Complainant was charged with: (1) Unacceptable Work Performance - delay of mail/failure to deliver 9 pieces of Red Plum [ad] mail, (2) Unacceptable Work Performance - Failure to Follow Instructions by failing to notify management he would be unable to return by 5 PM [three times] and excessive use of overtime, and (3) Unacceptable Conduct - displaying insubordinate behavior/Failure to Follow Instructions - excessive talking including making snide remarks to his manager. In the second removal notice, Complainant was charged with Unacceptable Conduct - discarding (throwing away) deliverable mail [which was found] that resulted in delay of mail on December 7, 2009.
In the notice for the first removal, the Agency cited the following past discipline - two letters of warning in March 2009, for unsatisfactory work performance; a 7-day no time off suspension in July 2009, for unsatisfactory work performance/failure to follow instructions; in July 2009, a 14-day suspension for failure to follow instructions/failure to perform duties in a safe manner; in August 2009, a 37-day suspension for failure to follow instructions/failure to perform duties in a safe manner; and in October 2009, a 60-day suspension for unacceptable conduct - failure to follow a direct order.
In its FAD, the Agency found that Complainant failed to prove a prima facie case of reprisal discrimination on the first removal, and proved a prima facie case of reprisal discrimination on the second. On both removals, the Agency found that Complainant did not show he was disparately treated. It found that management articulated legitimate nondiscriminatory reasons for the removals - the reasons charged therein, and Complainant failed to show the reasons were pretext to mask discrimination.
ANALYSIS AND FINDINGS
An AJ has the authority to sanction a party for failure to comply fully with an order without good cause shown. 29 C.F.R. � 1614.109(e) & (f)(3). Where a complainant has engaged in contumacious conduct, an AJ may appropriately sanction the complainant by dismissing the complaint. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Where a complainant has failed to comply with an AJ's order through simple negligence, and not contumacious conduct, a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, such as remanding the complaint to the Agency for a final decision. Id.; Bearden v. U.S. Postal Serv., EEOC Appeal No. 0120065258 (May 29, 2008) (affirming dismissal of the hearing request and remanding the case to the Agency for final agency decision where Complainant repeatedly failed to respond to discovery requests or comply with the AJ's orders).
As an initial matter, we find that the AJ properly exercised his authority in choosing his sanctions against Complainant, e.g., sanctioning him for not replying to the Agency's requests for admissions, despite being ordered to do so, by substituting no response, for admission, and sanctioning him by ordering the Agency to issue a FAD without a hearing after he, without notice, skipped an ordered settlement conference, among other things.
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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Pursuant to the AJ's discovery sanction, we find that Complainant admitted he committed all the infractions charged in the notices of removal recited in allegations 1 and 2. This is the Agency's legitimate, nondiscriminatory reason for the removals, along with his prior discipline history.
In his March 9, 2013 Response to Agency's Motion for a Decision Without a Hearing, Complainant argued that he was disparately treated. On the first removal, he argued that he used the same amount of overtime as another carrier (Comparison 1). Complainant cited to a workhour workload report the Manager of Customer Services, who issued his removal notices, included in her affidavit package. Affidavit B, at 47 (Bates stamp 191). We find that it difficult to decipher the meaning of the information in the report. In any event, the report does not reflect whether Comparison 1, like Complainant, was on unapproved overtime. Nor does the record show that Comparison 1 engaged in conduct for which Complainant was removed - unacceptable work performance, failure to follow instructions, and unacceptable conduct, or that he had a history of discipline like Complainant.
Regarding the second removal, Complainant argued in his Response to Agency's Motion for a Decision Without a Hearing that he inadvertently discarded deliverable mail because it was caught with undeliverable bulk business mail, the latter of which was proper to dispose in his undeliverable bulk business mail (UBBM) tub. He argued that others do the same thing, and for this reason, a clerk checks the UBBM tub to ensure there is no deliverable mail was accidentally placed in it. In support of this, Complainant submitted a statement by a senior clerk in his station which corroborated his argument. She indicated each carrier has a UBBM tub. Complainant's Response to Agency's Motion for a Decision Without a Hearing (March 9, 2013), Exh. D.
However, it appears that the removing official believed Complainant intentionally threw out the deliverable mail. She recounted that, in his two investigative interviews regarding the matter, he first responded "I don't recall," and then later said, "maybe you put it in there, how else could it have gotten there," implying his manager disposed of the mail, when asked how the deliverable first class and standard mail got into his UBBM tub.
The record further reflects that on March 9, 2009, the manager who removed Complainant had also issued a notice of removal to a letter carrier who had no record of prior EEO activity (Comparison 2) for Unacceptable Conduct - discarding (throwing away) deliverable mail, later found, which resulted in delay of mail. His removal notice cited only two prior disciplinary actions - letters of warning. Like Complainant, Comparison 2 threw deliverable mail into an UBBM tub. The removal of Comparison 2, a four-year employee, was processed in May 2009.
In sum, Complainant failed to prove that he was treated differently, failed to prove pretext, and thus failed to prove discrimination. The FAD 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 (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
July 17, 2018
__________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162574
6
0120162574