Linda D.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 23, 2020

2019004909 (E.E.O.C. Sep. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linda D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2019004909 Hearing No. 540-2017-00396X Agency No. 4E-852-0109-17 DECISION On June 18, 2019, 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 May 20, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former Full-Time City Carrier, Q-01, at the Sierra Adobe Station in Phoenix, Arizona. Complainant experiences complications from several conditions, including chronic pancreatitis; acute pancreatitis; necrotizing pancreatitis; diabetes, hypertriglyceridemia, and pancreatic pyseudocyst. Complainant stated that these conditions are permanent, and she was first diagnosed with these conditions on June 21, 2016. 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. 2019004909 2 Complainant was issued a notice of removal dated March 29, 2016 for failure to be regular in attendance, having missed approximately 236 hours of work between October 23, 2015 and March 9, 2016. Investigative Report (IR) 52-55, 94-101. The matter went to arbitration with an arbitrator denying Complainant’s grievance and finding in the Agency’s favor. IR 121-31. Complainant later requested reinstatement with a Last Chance Agreement. The Customer Service Operations Manager (CSOM) denied her reinstatement request. The CSOM noted that Complainant had failed to provide any medical documentation of her condition. IR 75. On May 15, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the basis of disability (chronic pancreatitis) when, on January 23, 2017, the CSOM denied her request for reinstatement with a Last Chance Agreement.2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On March 7, 2019, the AJ assigned to the case issued an acknowledgment and order scheduling the initial conference. The order specified that failure to follow this order or other orders of the AJ could result in sanctions being imposed on the non-complying party. The initial conference had been scheduled for March 28, 2019 but was moved back to April 9, 2019. Complainant did not appear telephonically on April 9th, and consequently, the AJ issued an order to Complainant to show cause as to why she should not be sanctioned for failing to comply with her scheduling orders. The order specified that Complainant shall show cause by submitting a statement explaining any reason she had for non-compliance. The order further specified that Complainant had to respond by sending a statement via email to the AJ and a copy to the Agency no later than April 15, 2019. Finally, the last paragraph of the order explicitly stated that Complainant’s failure to comply with the order would result in dismissal of the hearing request. Complainant did not submit a response to the AJ’s order, and consequently, on April 16, 2019, the AJ issued an order dismissing the hearing request and remanding the complaint to the Agency for issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b). The AJ stated that Complainant’s conduct evinced an unwillingness to abide by the requirements of the administrative hearing process. The Agency subsequently issued a final decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL In a post-script to her appeal brief dated July 20, 2019, Complainant stated that she never received any order from the AJ at her residence, despite living at the same street address for the previous 10 years. 2 The Agency dismissed two additional claims pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. Complainant raised no challenges to the dismissal of these claims on appeal and the Commission finds no basis to disturb the dismissal. 2019004909 3 Included with her appeal brief is an undated note to the AJ in which Complainant writes that she had lived at the same address for 10 years, that she also had the same phone number and same email address, and that she had never received an order in any form. In its response, the Agency pointed out that Complainant never explained how she failed to respond to the notice, orders, or communications from the AJ or the Agency via her email. We note that the same street and email addresses for Complainant were listed in her formal complaint, in her affidavit, and in the certificates of service for all of the AJ’s orders. ANALYSIS AND FINDINGS 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, 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”). The AJ’s Hearing Request Dismissal As an initial matter, the Commission will address the AJ’s sanction and whether it constituted an abuse of discretion. While a party charging an AJ with abuse of discretion faces a very high bar, the AJ’s authority to impose a sanction upon a party for failure to comply with her orders is not unlimited. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). To achieve a proper balance between deterring the noncomplying party from engaging in similar future conduct and equitably remedying the opposing party, it is necessary to apply the least severe sanction needed to respond the noncomplying party’s failure to show good cause for its noncompliance. Carolyn M. v. U.S. Postal Serv., EEOC Request No. 2019004843 (March 10, 2020). Factors pertinent to such tailoring of sanctions include: (1) the extent and nature of the noncompliance, 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; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. Looking at the first and fourth factors, we find Complainant’s non-compliance with the AJ’s orders to be both extensive and repetitive. Complainant failed to respond to both the initial acknowledgement and scheduling order as well as the order to show cause. Although she claims to have never received copies of those orders despite having lived at the same address for 10 years, the street and email addresses she listed in her formal complaint and her investigative affidavit were exactly the same as the street and email addresses printed on the certificates of service for all of the AJ’s orders. 2019004909 4 Her claim that she never received those orders despite providing that information not once but several times throughout the process appears disingenuous. In considering the second and third factors, we find Complainant’s failure to respond to the AJ’s acknowledgement order and order to show cause effectively halted the proceeding and prevented the Agency from engaging in the discovery process. Finally, when we take the fifth factor into account, we find that Complainant’s failure to respond to the AJ’s orders impugns the integrity of the EEO process as a whole. We therefore find that under the circumstances presented herein, the AJ did not abuse her discretion when she ordered the dismissal of Complainant’s complaint. Disparate Treatment 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, 802 (1973). Her first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the CSOM articulated a legitimate and nondiscriminatory reason for denying Complainant’s request for reinstatement after she had been terminated. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to the CSOM, Complainant had been removed from the Agency because she failed to be regular in attendance based on her having been charged with 236 hours of unscheduled absences over a five-month span of time. Those absences had been extensively documented and Complainant failed to adequately explain the absences or produce sufficient medical documentation in support. Further, the CSOM noted that Complainant’s attendance issues started several years prior to 2015. Finally, the CSOM added that Complainant mentioned her condition, but failed to produce any medical documentation in support of her request for reinstatement. As a result, the CSOM denied Complainant’s request for reinstatement. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanation put forward by the CSOM is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked why she believed that her disability was a factor in the CSOM’s decision not to grant her request for reinstatement, she replied that her condition had kept her incapacitated, thereby preventing her from maintaining regular attendance. IR 56. However, the CSOM averred that Complainant had not provided him with any documentation of her condition. 2019004909 5 Beyond her own unsupported assertion, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the CSOM’s explanation for denying her reinstatement request or which call into question the CSOM’s veracity as a witness. Ultimately, we find that the evidentiary record in the case now before us is insufficient to establish that the CSOM relied upon unlawful considerations of Complainant’s disability when he decided not to grant her request for reinstatement. Accordingly, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2019004909 6 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. 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 23, 2020 Date