[Redacted], Helen G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2022000830 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000830 Hearing No. 532-2022-00018X Agency No. 1C-441-0017-21 DECISION On December 1, 2021, 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 July 27, 2022, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Cleveland Annex facility in Cleveland, Ohio. On March 18, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 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. 2022000830 2 1. Complainant was not paid for hours worked. 2. She was denied Higher Level pay. 3. On October 8, 2020, a co-worker yanked a piece of equipment out of her hands. 4. A co-worker intentionally provoked her to try to get a reaction out of her. 5. On October 11, 2020, she was sent home from work. 6. On or about November 7, 2020, a supervisor threatened her job. 7. On or about December 2, 2020, she was issued a letter of separation. 8. On or about February 22, 2021, she was issued a letter of separation. The Agency accepted the claims for investigation and an investigator was assigned to investigate the complaint, sending Complainant an affidavit to complete by letter dated May 6, 2021. When Complainant did not return her affidavit, the Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(7) for failure to cooperate. Complainant appealed. In Helen G. v. U.S. Postal Serv., EEOC Appeal No. 2021005154 (Nov. 8, 2021), we reversed the Agency’s dismissal finding Complainant’s failure to respond did not inhibit the Agency’s ability to otherwise investigate the complaint in order to adjudicate the complaint. The complaint was remanded to the Agency for further processing. While the remanded case was before the Agency, Complainant mistakenly filed the instant appeal. However, the Agency continued processing the complaint on remand and, thereafter, 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. Prior to a hearing, the AJ directed Complainant to complete the affidavit she had not submitted during the investigation. Complainant failed to do so. The AJ issued an order to show cause, to which Complainant also did not respond. On July 13, 2021, the AJ issued an order finding judgment in favor of the Agency as a sanction for Complainant’s failure to respond to both of the AJ’s orders. In the alternative, in reviewing the record, the AJ found that there was no evidence in the record to support any of Complainant’s claims. The Agency subsequently issued a final order adopting the AJ’s finding. On August 13, 2022, Complainant filed another appeal of the Agency’s final order, which was administratively closed as a duplicate of the instant appeal by letter dated September 22, 2022. See EEOC Appeal No. 2022004389 (September 27, 2022). Complainant’s only statement on appeal appears to be a letter reiterating the claims made in her formal complaint.2 The Agency did not file a brief in response. 2 To the extent Complainant’s statement on appeal appears to raise issues concerning her claim for workers’ compensation, we note that the Commission does not have jurisdiction over the workers’ compensation process and any issues related to the adjudication of her workers’ compensation claim may not be raised during the EEO process. See Lashaunda G. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120162597 (Jan. 25, 2018). 2022000830 3 ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency's final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). As an initial matter, we note that while this appeal was prematurely filed before the AJ had issued a decision, in light of the fact that Complainant attempted to file an appeal of the Agency’s final order on August 13, 2022, we now accept the instant appeal as ripe for adjudication. See Rico M. v. Dep’t of Justice, EEOC Appeal No. 0120160238 (Feb. 6, 2018). 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). The sanctions available to an AJ for failure to provide requested relevant information 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, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These 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. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep’t of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, 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. See Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0120182728 (Feb. 27, 2020). Under the circumstances, we find that the AJ’s issuance of an order in the Agency’s favor as a sanction against Complainant for her failure to respond was warranted. We note that since the filing of her complaint, Complainant has consistently failed to respond in any way to assist in her case by not answering the Investigator’s initial request for her own affidavit and then by failing to respond to the AJ’s two orders. 2022000830 4 In fact, the only action Complainant appears to have taken is in the filing of numerous appeals at inappropriate times, which has led to confusion and administrative inconvenience. At no point has Complainant provided any reason or explanation for her continuing failure to provide an affidavit in support of her complaint. We therefore find that the AJ’s issuance of a decision in the Agency’s favor was within their discretion. In the alternative, we address the AJ’s finding that a judgment in favor of the Agency was also warranted because the evidence in the record did not establish that Complainant had been subjected to discrimination on the basis of either reprisal or disability. 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). She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). In the instant case, we agree with the AJ that the record does not establish a prima facie case of discrimination based on either reprisal or disability. In her formal complaint or in the information provided to the EEO counselor, Complainant did not actually identify any prior protected activity which she had engaged in. Complainant identified a shoulder sprain as her “disability,” but there is no evidence in the record to indicate that the injury to Complainant’s shoulder would either qualify as a disability for purposes of the Rehabilitation Act nor that any of the management officials were motivated by any discriminatory animus due to the injury. We note, in fact, that all of the management officials stated that they were not aware that Complainant had any physical impairments, had never received any medical documentation of such, and were also not aware of any prior protected activity Complainant had engaged in. See Report of Investigation (ROI) at 244-45; 262-63; 278-79; 296-97; 318-319. We therefore affirm the AJ’s decision finding that the evidence in the record did not establish that Complainant was subjected to discrimination or unlawful retaliation. See Myrtie P. v. U.S. Postal Serv., EEOC Appeal No. 2020004808 (Oct. 29, 2020). 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 finding that Complainant did not establish that she was subjected to discrimination or retaliation as alleged. 2022000830 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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. 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). 2022000830 6 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 March 27, 2023 Date