0120071571
04-17-2009
Douglas H. Stup, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas H. Stup,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071571
Hearing No. 570-2006-00018X
Agency No. 1K-221-0134-03
DECISION
On February 2, 2007, complainant filed an appeal concerning 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).1 For the following reasons, the Commission AFFIRMS the
agency's final decision.2
BACKGROUND
During the period at issue, complainant worked as a Mail Processing Clerk
at the Northern Virginia Processing and Distribution Center located in
Merrifield, Virginia. On September 15, 2005, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of race
(White-Non-Hispanic), sex (male), color (white), disability (10-point
veteran), age (D.O.B. 10/30/1950), and in reprisal for prior protected
EEO activity when:
1. on April 9, 2003, complainant's supervisor paged complainant twice
to return to his work area, paged him to return to his work area during
his scheduled break, and did not page two Black female co-workers who
left the work area at 2:00 a.m. and did not return until 2:25 a.m.;
2. on April 16, 2003, during complainant's scheduled break, complainant's
supervisor paged him to return to his work area; and
3. on April 17, 2003, during complainant's scheduled break, complainant's
supervisor paged him to return to his work area.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. However, on November 27, 2006, the AJ dismissed complainant's
hearing request on the ground that complainant repeatedly failed to
cooperate during discovery. The AJ remanded the complaint to the agency
to issue a final agency decision (FAD) on the merits of complainant's
complaint. When the agency did not issue a FAD within 40 days of the
AJ's decision, complainant filed the instant appeal with the Commission
on February 2, 2007. Complainant argued that the AJ erred in dismissing
his hearing request. Specifically, complainant denies that he failed
to cooperate. Complainant stated that he timely answered all AJ Orders
and the agency's discovery requests for interrogatories, production
of documents and motions. In addition, complainant alleged that he
supplied more than 100 pages of information in the Investigative File,
along with 83 pages of other documentation.
On February 10, 2007, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
AJ's Dismissal of Complainant's Request for a Hearing
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3);
EEOC Management Directive 110 (EEO MD-110), Chapter 7, pp. 9-10 (1999).
Such sanctions may include an adverse inference that the requested
information would have reflected unfavorably on the party refusing to
provide the requested information, exclusion of other evidence offered
by the party refusing to provide the requested information, issuance of
a decision fully or partially in favor of the opposing party, or other
actions as appropriate. 29 C.F.R. � 1614.109(f)(3). After a careful
review of the record, the Commission finds that the AJ did not abuse his
discretion by dismissing complainant's request for a hearing. The record
establishes that on April 21, 2006, the AJ issued a Show Cause Order and
Order Granting Motion to Compel. The AJ granted the agency's Motion to
Compel, noting that complainant failed to respond to the agency's Motion
to Compel. In an Order dated June 8, 2006, the AJ declined to sanction
complainant. The AJ noted that complainant's representative no longer
represented complainant. The AJ extended discovery until June 30, 2006.
During June 2006, the agency made several attempts by telephone3 and
by letters4 via certified mail to contact complainant in order to set
up his deposition. The record reflects that complainant received
the letters, as evidenced by his signature on the return-receipts.
However, complainant did not return the agencies telephone calls or
respond to its letters. Accordingly, in July 2006, the agency filed a
Motion to Enlarge Discovery and a Motion to Compel and for Sanctions.
Complainant did not respond to the Agency's motions. On August 19, 2006,
the AJ issued a second Show Cause Order regarding complainant's failure
to communicate with the agency. The AJ informed complainant that if he
failed to show good cause for, among other things, ignoring attempts
by the agency's representative to contact him, then the appropriate
sanction would be dismissal of his complaint from the hearings process,
and remand for a FAD. Complainant therefore was aware that his failure
to show good cause could result in dismissal of his hearing request.
On September 6, 2006, complainant served via facsimile an Answer to the
Show Cause Order. Complainant alleged that he did not respond to the
agency's motions because he did not receive the agency's motions in a
timely manner. Complainant also stated that he has complied with the
AJ's priors Orders, but he did not explain why he failed to respond to
the agency's letters and telephone calls. Accordingly, we agree with
the AJ that complainant failed to show good cause as to why he did not
respond to the agency representative's repeated telephone calls and
letters. Therefore, we find that the AJ did not abuse his discretion
by dismissing complainant's request for a hearing as a sanction for his
failure to show good cause. As the sanction of dismissing the hearing
request was within the AJ's discretion, he properly then remanded the
case to the agency to issue a decision on the record.
Complainant's Motions for Sanctions Against the Agency
Complainant filed several motions with the Commission requesting sanctions
against the agency.5 Complainant contends, inter alia, that the February
10, 2007 FAD was untimely because it was not issued within 40 days of
receipt of the AJ's November 27, 2006 Order of Dismissal. The AJ, as
indicated earlier, dismissed complainant's request for a hearing and
remanded the matter to the agency for issuance of a FAD pursuant to 29
C.F.R. � 1614.110. Complainant asserts that the agency should have
issued its decision within 40 days in accordance with applicable law
and regulations. Complainant requested that, as a sanction against
the agency, the Commission should draw an adverse inference against
the agency and should reverse the FAD. Complainant has provided no
support for imposing the 40-day requirement in a case such as this,
where there has been no dismissal pursuant to � 1614.107 by the AJ,
or where the AJ did not address the merits of complainant's claim.
Accordingly, the Commission will treat complainant's submissions on
appeal as having become ripe for adjudication once the agency issued
its decision. See Patterson v. Department of the Air Force, EEOC Appeal
No. 0120061872 (May 10, 2007).
Complainant also asks the Commission to compel the agency to provide him
with the agency file. The record reflects that during the course of the
proceedings below, the agency provided complainant with a copy of the
Report of Investigation and served him with subsequent documents filed.
Complainant has not identified any document that he has not, or suspects
he has not, received already. Accordingly, there is no basis to compel
the agency to provide complainant with a copy of the agency file.
Disparate Treatment Claims
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 Construction 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 United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency has articulated legitimate, non-discriminatory reasons for
its actions. Complainant's supervisor stated that complainant was paged
to return to his workstation area because he was not on an authorized
break and his supervisor and co-workers were unaware of complainant's
whereabouts. Management testified that any employee away from his or
her workstation area without explanation or permission will be paged, and
if the employee does not return quickly, he or she will be paged again.
We find that complainant has not offered any evidence to establish
that the agency's proffered reasons are a pretext for prohibited
discrimination. We note that, on appeal, complainant did not address
the merits of his claims.6 Rather, he argued only that the AJ erred
in denying his hearing request. Upon review, we find that complainant
failed to rebut the agency's articulated legitimate, non-discriminatory
reasons for the alleged incident.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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.
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 (S0408)
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 (Z1008)
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
April 17, 2009
Date
1 We note that complainant filed his appeal prior to the agency issuing
its final decision on the matter. However, given that the agency issued
its final decision in this matter on February 10, 2007, we consider
complainant's appeal to have been perfected.
2 We note that complainant has not contested the agency determination
to dismiss seven additional allegations contained in his complaint for
failure to state a claim. Accordingly, we limit our consideration to
the agency's decision as it pertains to the issues set forth as Claims
1 through 3 in the text, below.
3 The agency left telephone messages for complainant on June 20, June 21,
and June 23, 2006.
4 The agency sent complainant letters via certified-mail on June 8 and
June 15, 2006.
5 Complainant filed five motions to the Commission entitled, "Request
for Status of Appeal" "Motion to Compel Agency to Provide Complainant
With the Agency File," "Request for Sanctions and an Adverse Inference,"
and "Motion to Deny [sic] Agency's Final Decision."
6 On appeal, complainant cited several prior EEO complaints, alleging
that those cases should be consolidated with the instant complaint.
We note that those matters are the subject of other appeals previously
resolved by the Commission.
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0120071571
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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