Vickie T.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Jan 27, 2020

EEOC Appeal No. 0120181675 (E.E.O.C. Jan. 27, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Vickie T.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 0120181675
Hearing No. 461-2018-00039X
Agency No. 4G-770-0345-16

DECISION

On April 23, 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
March 23, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

The issues presented are whether the Equal Employment Opportunity Commission Administrative
Judge’s dismissal of Complainant’s hearing request for failing to participate in the initial hearing
conference was an abuse of discretion; and whether Complainant established that she was
discriminated against based on reprisal for prior protected EEO activity when on August 26, 2016,
she became aware that she did not have the correct seniority date.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant
2 at the Agency’s Spring-Klein Station in Spring, Texas.

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.
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Complainant maintained that on August 26, 2016, she learned that she did not have the correct
seniority date. Complainant alleged that because of her prior EEO activity, A1, the Customer
Service Support Supervisor, and A2, the Field Recruiter, intentionally started her in a later
orientation class. She indicated that her seniority date was listed as October 17, 2015, but she
cleared all authorizations on August 14, 2015, and therefore, her seniority date should have been
August 22, 2015.

A1 declared that she never told Complainant which orientation class she would be in, as the task
of scheduling orientation belongs to Human Resources Training. She maintained that she told
Complainant that the sooner she could get all her information in and respond to the seven-day job
offer, the sooner she would be put in to the next available orientation class. A1 stated that she
received an email from Human Resources on August 27, 2015, telling her they could not find
Complainant’s name in the system, so she sent her an email the same day asking if she had ever
used any other names. She maintained that Complainant came to her office on September 4, 2015,
with her new Texas driver’s license and told her that she was denied because she received an email
stating her license had expired.

A1 stated that she did remember that initially Complainant did not have a Texas driver’s license
and that in the interview invite and the interview itself, she told Complainant that she had to have
a valid Texas driver’s license. A1 stated Complainant’s seniority date was determined when she
reported to orientation on Monday, October 19, 2015. She explained that Complainant had to pass
a drug test, a background and driving record check, as well as have a Texas driver’s license. She
testified that she was not involved in determining Complainant’s seniority date and that it was
determined according to the day Complainant started orientation. She explained that a seniority
date is set on the first day of a pay period, which was October 17, 2015, which was the reason
Complainant's seniority date was on that date.2

A2 stated that she was not involved with determining Complainant’s seniority date and did not
know who did. She stated that Complainant’s seniority date was determined when her screens were
cleared and there was room to process her on the rolls. She maintained that Complainant was
interviewed by A1 on August 14, 2015, and that it would have been impossible to have her
seniority date established as of August 22, 2015, as Complainant alleged it should have been. A2
indicated that it would have been impossible to have an orientation eight days after the interview,
as Local Services would have had to receive and review the hiring packet first and then process it.

Complainant maintained that after she submitted her documentation for the City Carrier Assistant
position, A1 learned of her prior EEO activity. Thereafter, Complainant stated that on September
3, 2015, she received a letter that indicated that she did not meet the requirements for the City
Carrier Assistant because of her driving.

2 The record included an email dated August 27, 2015, which indicated that Human Resources was
not finding a match for Complainant’s name in the system. The email string also showed A1 stated
that Complainant came to her office on September 4, 2015 and told her that she was not selected
for the position because her current driver’s license was suspended.
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Complainant explained that during each interview that she attended, she explained her prior EEO
activity. It was ultimately determined that nothing was wrong with her driving record or her name
and she was again offered the position and scheduled for orientation on October 14, 2015.

On December 17, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her in reprisal for engaging in prior protected EEO activity when on August
26, 2016, she became aware that she did not have the correct seniority date. At the end 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 requested a hearing, but the AJ subsequently dismissed the hearing request on the
grounds that Complainant failed to appear at a scheduled status conference without providing an
explanation. Specifically, the record indicates that on December 29, 2017, the AJ issued, by email
service, (1) an Order of Acknowledgment and Case Management and (2) an Initial Status
Conference Notice and Order, which set an initial conference date before the AJ on February 21,
2018 at 10:00 a.m. central time. Both orders indicated that there was the risk of a sanction for
failing to appear at a scheduled event including, among other sanctions, the possible dismissal of
the hearing request.

On February 21, 2018, Complainant did not appear at the conference. The AJ noted that they
waited for 40 minutes for Complainant to call-in and appear. While waiting, the AJ telephoned
Complainant twice without reaching her. Once, according to the AJ, it appeared that someone
answered Complainant’s cell phone but never spoke. The AJ left a message during the second
attempted call and reminded Complainant that she had to appear and that sanctions could follow
if she did not. The AJ also emailed Complainant about the conference and asked the Agency’s
representative to check with Complainant’s managers. He discovered that Complainant was not
scheduled to work that day. The AJ also noted that Complainant had failed to communicate with
the representative after he had reached out to her about potential settlement prior to the conference.
Despite the conference being scheduled months in advance, the AJ noted that Complainant never
explained her failure to appear. Accordingly, the AJ dismissed the hearing request 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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that she first learned of the AJ’s actions
when she received the Agency’s FAD. Complainant explains that when she filed her request for
a hearing, she assumed that any notifications would be by first class or certified mail. Complainant
indicated that she only included her email address on the form because the form requested it and
she wanted to complete the form, but that although she had her email address for years, she does
not check it regularly. As a result, she had no notice of the scheduled conference. Complainant
noted that, in the past, she was notified about EEO conferences by mail.
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She contends that she was waiting to hear from the AJ regarding scheduling and that it was not her
intention to ignore the AJ’s orders, she was simply unaware of the scheduled conference.
Further, Complainant contends that she never received written notice from the Agency’s
representative of possible settlement or a phone call to discuss a settlement. Complainant
maintains that she would have responded. Moreover, Complainant asserts that the Agency had
mailed its designation of the Agency’s Representative to the wrong address. She also maintains
that she was on approved annual leave at the time of the conference.

Complainant also discusses the merits of the case and maintains that the evidence shows that
discriminatory animus was involved and that she could prove that the Agency’s nondiscriminatory
reasons were pretext for discrimination.

In response, the Agency contends, among other things, that Complainant can not establish a prima
facie case of retaliation, and that it articulated legitimate, nondiscriminatory reason for its actions,
and Complainant did not show that the reasons were pretext for discrimination. Regarding the
dismissal of her hearing request, the Agency asserts that the AJ has broad authority when
conducting hearings, and that when a party fails to respond to an order of an AJ, the AJ may, as
appropriate, sanction the non-complying party.

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”).

At the outset, we note that an Administrative Judge has inherent powers to conduct a hearing and
issue appropriate sanctions. EEO-MD 110 Ch. 7, § III(D) (Aug. 5, 2015); Complainant v. Dep’t
of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015). AJs have broad authority over the
conduct of hearings. 29 C.F.R. § 1614.109 et seq. If a party does not respond to an order of an AJ,
the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. §
1614.109(f)(3). In appropriate circumstances, an Administrative Judge may sanction a party for
its conduct. Sanctions should be tailored to deter the party from similar conduct in the future and,
if warranted, to equitably remedy any harm incurred by the opposing party. Sanctions should not
be so severe that they result in inequity, nor should they be so lenient that they fail to serve as a
deterrent. If a lesser sanction would suffice to deter the conduct and to equitably remedy the
opposing party, it may constitute an abuse of discretion to impose a harsher sanction. See Hale v.
Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Administrative Judges
must distinguish between conduct that does not warrant the imposition of a sanction and conduct
which does.
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In the instant case, we do not find that the AJ abused her discretion in dismissing the hearing
request. There is no dispute that Complainant, on December 29, 2017, received the AJ’s Order of
Acknowledgment and Case Management and the Initial Status Conference Notice and Order,
which set an initial conference date before the AJ on February 21, 2018 at 10:00 a.m. There is
also no dispute that both Orders indicated that there was the risk of a sanction for failing to appear
at a scheduled event including, among other sanctions, the possible dismissal of the hearing
request. Although Complainant maintained that she did not regularly look at her emails, we find
it reasonable to conclude that after more than a month she would have examined her emails.
Moreover, Complainant did not deny receiving two phone calls from the AJ on her cell phone, and
a voice message. Had she been unaware of the February 21, 2018 conference, she could and should
have let the AJ know immediately, and the parties could have rescheduled the conference and
addressed any concerns about the service of documents. There is no evidence that Complainant
ever responded to the AJ’s telephone calls. We find that the AJ appropriately tailored the sanction
in this case to, among other things, ensure compliance with AJ Orders in the future.

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, Complainant established a prima facie case of reprisal discrimination, we
find that the Agency articulated legitimate, non-discriminatory reasons for why Complainant’s
seniority date was set at October 17, 2015. Complainant’s seniority date was based on when she
was scheduled for orientation, i.e., on Monday, October 19, 2015. According to A1, she never
told Complainant which orientation class she would be in, as the task of scheduling orientation
belongs to Human Resources Training, but that the sooner she could get all her information in and
respond to the seven-day job offer, the sooner she would be put in to the next available orientation
class. We find no persuasive evidence that Complainant was not given an earlier seniority date
because of her previous EEO activity. On the contrary, the record indicates that her hiring
paperwork was not completed until after September 4, 2015 when she presented a valid driver
license. Accordingly, we find that Complainant did not establish that discrimination played any
role in this matter.
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 finding no discrimination.
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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.
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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

January 22, 2020
Date