Mindy O.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 23, 2020

2020001181 (E.E.O.C. Sep. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001181 Hearing No. 430-2019-00409X Agency No. 4K-230-0195-16 DECISION 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 9, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a City Letter Carrier in Richmond, Virginia. On November 15, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), color (light skin), and age (58 years old at the time of the incidents in question). 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. 2020001181 2 By letter dated December 5, 2016, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1) On July 23, 2016, Complainant was placed on emergency placement in an off-duty without pay status; and 2) On October 5, 2016, Complainant was placed on emergency placement in an off-duty without pay status. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On November 2, 2017, the AJ dismissed Complainant’s hearing request on procedural grounds. Complainant filed an appeal with the Commission. In EEOC Appeal No. 0120180810 (May 2, 2019), the Commission reversed the AJ’s procedural dismissal. However, on August 26, 2019, the AJ issued a Notice of Intent to Issue Sanction and Order to Show Cause (OSC). Therein, the AJ noted that Complainant and her representative did not join an Initial Conference Call scheduled for August 26, 2019. The AJ provided Complainant until September 2, 2019 to file a response to the OSC. The AJ sent the OSC to the email addresses of record for Complainant and her representative. On September 10, 2019, the AJ issued an Order Imposing Sanctions and Dismissing Hearing Request. Therein, the AJ dismissed Complainant’s hearing request and remanded the matter to the Agency for a final decision based on Complainant’s failure to appear for the Initial Conference on August 26, 2019 and failure to respond to the OSC. On October 9, 2019, the Agency issued a final decision finding no discrimination. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination. The instant appeal followed. Complainant does not submit a timely statement or brief in support of her appeal. 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”). 2020001181 3 As an initial matter, we conclude that the AJ did not abuse her discretion in most recently dismissing Complainant’s hearing request. In a July 29, 2019 Order Rescheduling Initial Conference the parties were informed that the Initial Conference was rescheduled for August 26, 2019. The July 26, 2019 Order also informed the parties that “failure to comply with any Orders or failure to attend any scheduled event will lead to sanctions including the possible dismissal of the captioned complaint.” The record is devoid of evidence that Complainant and/or her representative attended the August 26, 2019 Initial Conference. Moreover, the record is devoid of evidence that Complainant responded to the AJ’s OSC. The AJ’s OSC expressly informed Complainant that “it is the intent of the [AJ] to issue sanctions, including dismissal of the hearing request, absent good cause shown. Therefore, Complainant is hereby ORDERED to SHOW CAUSE, in writing,,,on or before September 2, 2019…as to why she did not attend the scheduled conference as required.” Thus, we find that the AJ did not abuse her discretion in dismissing Complainant’s hearing request. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claim (1)-July 2016 Emergency Placement The Agency articulated legitimate, nondiscriminatory reasons for claim (1). The record contains an affidavit from the Supervisor, Customer Service (S1) (African American, Brown, Female), the official who put Complainant on emergency placement. S1 stated that Complainant was involved in a vehicular accident in which another individual was rear-ended. ROI at 121. S1 states that if an employee is involved in an accident with another person or vehicle, the employee immediately 2020001181 4 goes on emergency placement. Id. The record contains an August 15, 2016 memorandum to Complainant. Therein, the Agency informed Complainant that she was placed in off-duty status effective July 23, 2016 due to a vehicular accident. ROI at 151. Claim (2)-October 2016 Emergency Placement The Agency also articulated legitimate, nondiscriminatory reasons for claim (2). The record contains an affidavit from S1, who placed Complainant on Emergency Placement. S1 asserts that Complainant was involved in a second accident within a few months, in which the other vehicle flipped over and the individual was taken to the Emergency Room. ROI at 112. The record contains a memorandum to Complainant dated October 25, 2016. Therein, the Agency informed Complainant she was being placed in off-duty status due a vehicular accident in which Complainant made an illegal U-turn.2 ROI at 158. We further find regarding claims (1) and (2) that Complainant failed to establish, by a preponderance of the evidence, that the Agency’s articulated reasons are pretext for discrimination. While Complainant asserts other employees were not placed on emergency placement for an extended period, we concur with the Agency that the record is devoid of any evidence that the comparators engaged in the same behavior in that they did not have two accidents within short period of time.3 Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2 The record contains a Virginia Uniform Summon dismissing the improper U-turn charge. 3 The record reflects that Complainant was issued a Notice of Removal dated January 12, 2017 for failure to follow safety regulations and failure to operate a motor vehicle safely regarding the October 2016 vehicular accident. The record further reflects that pursuant to an August 24, 2017 pre-arbitration agreement the NOR was rescinded. 2020001181 5 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. 2020001181 6 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