0120110013
02-15-2013
Mary E. Amato, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Mary E. Amato,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120013
Hearing No. 532-2009-00056X
Agency No. 4C430010308
DECISION
On September 21, 2011, Complainant filed an appeal from the Agency's August 31, 2011, final order 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge (AJ) failed to address Complainant's allegations that the Agency failed to properly engage in discovery.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate (RCA) at the Agency's Powell Post Office in Powell, Ohio. On September 25, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (55) when she was terminated, effective August 19, 2008.
At the conclusion 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 7, 2011, and issued a decision on August 22, 2011.1 The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the AJ erred by not compelling the Agency to provide responses to her discovery requests. Complainant argues that the Agency did not provide evidence of any comparators' attendance records. Complainant also requested that the AJ issue sanctions against the Agency for failure to provide the requested information. The AJ, however, did not issue the requested sanctions. Complainant also argues that the AJ accepted the testimony of two witnesses and failed to take into account the fact that she was denied discovery of evidence that the Agency had in their possession. Complainant also argues that both of the Agency's witness testified that the Agency's attorney did not request that they provide her with the information requested in her discovery request. Further, Complainant argues that the Agency maintains a policy to instruct its manager and supervisors to not provide Complainant with the requested information. The Agency did not file any statements in response.
ANALYSIS AND FINDINGS
Preliminarily, we note that the Commission has the discretion to review only the issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999). Because Complainant did not address the specific findings of the AJ with regard to whether she was discriminated against, we will not address those matters here. Therefore, our decision will limit itself to the procedural matters Complainant raised on appeal.
The record reveals that the AJ granted Complainant's discovery request in part and ordered the Agency to produce "attendance records, birth dates and disciplinary records related to attendance issues for all Rural Carrier Associates at the Powell Station from January 2007 through August 18, 2008." AJ's April 29, 2009 Order. The AJ, however, determined that "the rural carrier matrix of carrier routes and caIl-offs [information requested by Complainant] is not relevant. The Agency's stated reason for terminating the Complainant's employment was their inability to reach the Complainant to instruct her to come to work and her prior discipline, not an issue of calling off from work." Id. Complainant opposed the AJ's decision to not include the matrix.
Thereafter, Complainant again requested that the AJ issue sanctions against the Agency for failing to comply with her April 29, 2009 order. Complainant alleged that the Agency failed to provide the birth dates for all of the RCAs employed at the Powell Station between January 1, 2007 and August 18, 2008 and that the Agency had failed to maintain records of the disciplinary actions or failed to provide said records to her. The AJ ordered the Agency to provide the birthdates as ordered in her previous order. AJ September 30, 2009 Order. The AJ found, however, that the Agency complied with the previous order in part by sending Complainant 900 pages of attendance records. Id. The record also reveals that the Agency did not provide any disciplinary records for RCA's because Complainant was the only RCA to be disciplined by the Responsible Management Official in this case. Agency's May 12, 2009 Response to Complainant. The AJ found that Complainant did not present any evidence to support her contentions that the Agency failed to maintain or provide her with disciplinary records. AJ September 30, 2009 Order.
The Commission's regulations afford broad authority to AJs for the conduct of hearings. 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); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). In this case, we find that the AJ did not abuse her discretion with regard to Complainant's discovery and sanctions requests. Although the record reveals that Complainant was seeking evidence to establish who her comparators were in this case, Complainant failed to demonstrate that the AJ erred by not issuing sanctions against the Agency for not producing the requested information. On appeal, Complainant has not articulated specifically what evidence was missing and why it was critical to her case. Further, we note that a hearing was held in this case. If there were any deficiencies in the record, Complainant had the opportunity, apart from her discovery requests, to request that the AJ perfect the record.
Finally, we turn to Complainant's assertions on appeal that the Agency's attorney erred by not obtaining the information requested in the discovery requests from the manager and supervisor and instructing the managers and supervisors to not provide this information to Complainant. We find that nothing in the record supports Complainant's allegation of misconduct on the behalf of the Agency. Although a witness testified that she was not asked to respond to any discovery requests, we find that this alone does not establish that the Agency engaged in any misconduct with regard to the discovery process in light of the fact that the AJ found that the Agency complied, in part, with the order. Further, Complainant has failed to show that the Agency maintained a policy of instructing managers and supervisors to not provide information to her.
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 order adopting the AJ's finding of no discrimination.
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.
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
__2/15/13________________
Date
1 Initially, the AJ issued a decision without a hearing finding no discrimination. Complainant appealed to the Commission. In Amato v. U.S. Postal Serv., EEOC Appeal No. 0120110071 (Feb. 10. 2011), the Commission remanded the case to the AJ for a hearing on the merits. The instant case is the appeal of the AJ's decision after a hearing was conducted.
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0120120013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120013