Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 19, 2013

0120113583 (E.E.O.C. Sep. 19, 2013)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120113583

Hearing No. 541-2009-00117X

Agency Nos. 4E-800-0174-08; 4E-800-0260-08

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
June 20, 2011 final Agency decision (FAD) 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer
Services Manager at the Agency’s Capitol Hill Annex in Denver, Colorado. Complainant was
scheduled for an investigative interview on April 30, 2008. Complainant emailed her manager
(M1) to request that the interview be postponed a week, but received no response. On April
30, 2008, the Postmaster’s secretary informed Complainant that she was still scheduled for the
meeting that day. Complainant spoke with M1 who instructed Complainant to report to her
office. Complainant refused to report stating that she had previously requested that the
meeting be postponed and she did not have a union representative. M1 offered to provide her
with a representative; however, Complainant declined because she wanted to chose her own
representative and be more prepared. M1 then placed Complainant on an emergency off-duty
status and instructed Complainant to leave the premises.

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Complainant met with M1 the next morning on May 1, 2008. M1 decided to keep
Complainant in the off-duty status based on timekeeping irregularities that required additional
investigation. Complainant returned to duty on May 6, 2008, and she was paid the following
pay period for her time in the off-duty status.

On March 26, 2008, a service audit team discovered two vehicles were unlocked and one
vehicle held undelivered mail. Complainant indicated to M1 that she had allowed a supervisor
to randomly check vehicles instead of checking every vehicle for mail in violation of Agency
policy. Additionally, Complainant allowed a full-tour of overtime on March 29, 2008, without
M1’s authorization. On May 9, 2008, M1 issued Complainant a Letter of Warning for failure
to follow instructions and unacceptable performance.

On July 1, 2008, M1 issued Complainant a Proposed Letter of Warning in Lieu of Seven-Day
Suspension for use of full-tour overtime without authorization and allowing other employees
access to her Time and Attendance Collection System (TACS) password. Complainant failed
to respond to the Proposed Letter of Warning and she was issued a Letter of Decision
affirming the Letter of Warning.

On June 14, 2008, Complainant filed a formal complaint (Agency No. 4E-800-0174-08)
alleging that the Agency discriminated against her on the bases of sex (female) and age (49)
when she was put on Emergency Placement on April 30, 2008, and she received a Letter of
Warning on May 9, 2008.1

On August 28, 2008, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(7) for failure to cooperate finding that Complainant failed to return the
requested affidavit. Complainant appealed, and in v. U.S. Postal Serv., EEOC Appeal
No. 0120083897 (Dec. 24, 2008), the Commission reversed the dismissal and remanded the
complaint for further processing.2

The Agency completed the investigation and provided
Complainant with a copy of the report of investigation (ROI1) and notice of her right to request
a hearing. Complainant requested a hearing.
On October 3, 2008, Complainant filed a second formal complaint (Agency No. 4E-800-0260-
08) alleging that the Agency discriminated against her on the bases of sex and age when on
July 18, 2008, she received a Letter of Decision for a Letter of Warning in Lieu of Seven-Day
Suspension, which upheld the Proposed Letter of Warning she received on July 2, 2008.3

1 In addition, Complainant alleged that on unspecified dates she was subjected to harassment.
The Agency dismissed the claim pursuant to 29 C.F.R. 1614.107(a)(1) for failure to state a
claim.

2 The Commission did not remand Complainant’s previously dismissed harassment claim.

3 Complainant attempted to raise the previously dismissed harassment claim; however, the
Agency dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same claim
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI2) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). The Agency determined that Complainant failed to request a
hearing or a final agency decision within the time frame provided in 29 C.F.R. § 1614.108(f).
As a result, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
Complainant appealed to the Commission and argued that she had timely requested a hearing
via facsimile to the EEOC Phoenix District Office in February 2009. In v. U.S. Postal
Serv., EEOC Appeal No. 0120092019 (May 25, 2010), the Commission determined that
Complainant had timely requested a hearing. The Commission vacated the final decision and
remanded the complaint for a hearing.

The AJ assigned to the case consolidated the two complaints and issued an Acknowledgment
and Order on November 4, 2010. In the Order, the AJ informed the parties that failure to
follow her orders could result in sanctions. On March 10, 2011, the AJ issued a Scheduling
Order informing the parties of timeframes related to prehearing matters.

On May 10, 2011, the AJ dismissed Complainant’s hearing request and remanded the
complaint to the Agency for a FAD as a sanction. The AJ determined that Complainant,
through her attorney, had failed to comply with her orders on numerous occasions, including
failing to timely file a prehearing report and failing to attend a prehearing status conference
call. Based on this conduct, the AJ concluded that dismissal of Complainant’s hearing request
was an appropriate sanction and remanded the complaints to the Agency for issuance of a
FAD.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to the disciplinary action alleged in Agency No. 4E-800-0174-08,
M1 affirmed that she placed Complainant on emergency off-duty status after Complainant
refused a direct order to report to her office for an investigative interview. M1 added that
after meeting with Complainant the next day, she decided to keep Complainant in off-duty
status because of serious timekeeping irregularities that required investigation. As to the May
5, 2008, Letter of Warning, M1 explained that she issued it because Complainant failed to
follow instructions. In particular, Complainant failed to maintain service logs as instructed and
mail was discovered in a vehicle overnight which Complainant failed to clear. Finally, M1
noted that Complainant allowed full tours of overtime without approval.

Regarding the disciplinary action alleged in Agency No. 4E-800-0260-08, M1 and a second
manager (M2) affirmed that Complainant failed to comply with job expectations related to the

previously decided by the Agency. Alternatively, the Agency again dismissed the claim for
failure to state a claim. Complainant failed to raise any challenges to the Agency’s dismissal
before the AJ within 30 days pursuant to the Acknowledgment and Order; therefore, the AJ
determined that the harassment claim was not part of Complainant’s consolidated complaint.
The Commission finds no reason to disturb the AJ’s determination.
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use and disclosure of overtime, and she allowed other employees to utilize her username and
password for access to the TACS system. M2 noted that Complainant did not avail herself of a
meeting with him on the proposed discipline so he based his decision on the evidentiary file
and the Notice of Proposed Discipline. As a result, the Letter of Decision upheld the Letter of
Warning.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated against as alleged. This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant, through her attorney, argues that the AJ did not have authority to
dismiss her hearing request as a sanction. Further, Complainant contends that the AJ erred in
not issuing an Order to Show Cause prior to dismissing the hearing request. Complainant
argues that she complied with the AJ’s orders; however, her attorney did experience technical
problems which resulted in the untimely submission of the pre-hearing conference statement.
Thus, Complainant contends that she has shown good cause for any delay or non-compliance
with the AJ’s orders. Complainant requests that the Commission remand the matter for a
hearing.

ANALYSIS AND FINDINGS

The AJ’s Sanction

The Commission must first address the AJ's decision to dismiss Complainant's request for a
hearing and remand the matter to the Agency. The Commission's regulations afford broad
authority to AJs over the conduct of hearings, including the authority to sanction a party for
failure, without good cause shown, to fully comply with an order. See 29 C.F.R. § 1614.109
et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 7-8 (Nov. 9, 1999). However, such sanctions must be tailored in each case to
appropriately address the underlying conduct of the party being sanctioned. A sanction may be
used to both deter the non-complying party from similar conduct in the future, as well as to
equitably remedy the opposing party. 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).

Upon review, the Commission finds that the AJ did not abuse her discretion in dismissing
Complainant’s request for a hearing as a sanction for not complying with her orders. The AJ’s
November 4, 2010 Acknowledgement and March 10, 2011 Scheduling Orders advised both
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parties that failure to fully comply with her orders could result in sanctions. Thus, despite
Complainant’s arguments to the contrary, Complainant was placed on notice that sanctions
could be issued if she failed to comply fully with the AJ’s orders. In her May 10, 2011
dismissal Order, the AJ listed seven examples of Complainant’s non-compliance with her
orders. The Commission is not persuaded by Complainant’s arguments on appeal and finds
that the imposition of a sanction in this case did not constitute an abuse of discretion given
Complainant's failure to comply with the AJ's orders. As the sanction of dismissing the
hearing request was within the AJ's discretion, she properly remanded the case to the Agency
to issue a decision on the record.

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 (1973). Complainant must initially 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 Constr. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to discipline issued in Agency No. 4E-800-0174-08,
the April 30, 2008 incident, M1 affirmed that she placed Complainant in an emergency off-
duty status because Complainant refused to follow her direct order to report to her office.
ROI1, at 116. M1 added that she met with Complainant the next day, but decided to keep her
in off-duty status because of serious timekeeping irregularities that needed further
investigation. Id. M1 stated she subsequently brought Complainant back to work and
Complainant was paid for her time off. Id. M1 asserted that she issued Complainant a Letter
of Warning on May 15, 2008, for failure to follow instructions. Id. M1 confirmed that
Complainant failed to maintain the service logs as she had been instructed, failed to clear mail
out of a vehicle left overnight, and she brought in full tours of overtime without authorization
against M1’s instructions. Id. As a result, M1 issued Complainant a Letter of Warning.

With respect to the discipline issued in Agency No. 4E-800-0260-08, Complainant was issued
a Proposed Letter of Warning in Lieu of a Seven-Day Suspension for unacceptable
performance. Specifically, M1 charged Complainant with multiple incidents of allowing
employees to work full-tour overtime without approval. ROI2, at 82. In addition,
Complainant allegedly allowed another employee to use her username and password to access
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the TACS system. Id. at 83. Complainant did not avail herself of the opportunity to respond
to the Proposed Letter of Warning, and M2 upheld the Letter of Warning. Id. at 75.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
The Commission finds that the record is devoid of any evidence that Complainant's sex or age
were factors in any of the Agency’s actions. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that she was subjected to unlawful discrimination.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 19, 2013
Date