[Redacted], Irene C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal Nos. 2021002236, 2021002238 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal Nos. 2021002236 & 2021002238 Hearing Nos. 430-2020-00556X & 430-2020-00561X Agency Nos. 6X-000-0008-20 & 6X-000-0017-20 DECISION On February 27, 2021, Complainant filed the above-referenced appeals pursuant to 29 C.F.R. § 1614.403(a), concerning her equal employment opportunity (EEO) complaints 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. Pursuant to 29 C.F.R. § 1614.606, these appeals are being consolidated for decision. Complainant worked as a Personnel Processing Specialist, EAS-18, at the Agency’s Human Resources Shared Service Center (HRSSC) in Greensboro, North Carolina. She filed two formal complaints in which she set forth the following claims: 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. 2021002236 2 1. On March 13, 2020, Complainant filed Agency No. 6X-000-0008-20 alleging that the Agency discriminated against her on the bases of race/national origin (Hispanic/Latino)2 and age (58) when, on October 31, 2019, when she was not recommended to the Selecting Official by the Review Committee for the position of System Support Specialist, EAS-21. 2. On May 19, 2020, Complainant filed Agency No. 6X-000-0017-20 alleging that the Agency discriminated against her on the basis of age (58) by not referring her application for two EAS-21 supervisory positions to the selecting official for consideration. At the conclusion of the ensuing investigations, the Agency provided Complainant with copies of the investigative reports (IR1 and IR2 respectively) and notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). On September 3, 2020, Complainant submitted a single hearing request form for both complaints. On the form she included her personal email address but not her email address for work. On September 28, 2020, the AJ to whom the complaints were assigned issued an order scheduling the initial conference for November 20, 2020. On page (3) of the order, in section (5), the AJ warned both parties that failure to follow his orders could result in sanctions being imposed, up to and including dismissal of the hearing request. The certificate of service indicated that the order was transmitted electronically to Complainant at her personal email address. Neither Complainant nor any representative appeared at the initial conference on her behalf. As a consequence, the AJ issued a notice of intent to dismiss Complainant’s hearing request and order to show cause dated November 27, 2020. The order specified that Complainant was to show cause, in writing, as to why she did not appear at the initial conference. It further specified that failure to comply with any orders or failure to attend any scheduled event would lead to sanctions against the offending party, up to and including dismissal of the hearing requests in both cases. According to the certificate of service, the notice of intent/show cause order was transmitted electronically to Complainant at her personal email address. On December 21, 2020, after receiving no response from Complainant, the AJ issued an order dismissing her hearing request. The AJ emphasized that Complainant failed to respond to the initial scheduling order and the order to show cause. The AJ also noted that Complainant, who was registered in the EEOC Public Portal and could view her file through the portal, accessed the scheduling order on September 28, 2020, at 7:43 p.m. using her personal email address as indicated in the electronic activity log. 2 Although Complainant alleged discrimination on the basis of race (Hispanic), the Commission considers the term “Hispanic” to be reflective of national origin rather than race. Leora R. v. U. S. Postal Serv., EEOC Appeal No. 2020003139 n.2 (March 29, 2021); King W. v. U.S. Postal Serv., EEOC Appeal No. 0120143148 n. 2 (Feb. 25, 2016). 2021002236 3 The Agency subsequently issued separate final decisions finding that Complainant was not subjected to discrimination as alleged in both complaints. This appeal followed. Regarding the AJ’s decision to impose a sanction, Complainant contends: I did not receive any invitation to attend [the] initial conference. I was clear that I wanted to receive correspondence by mail because the email get[s] lost or [ends up in the] spam [folder]. The EEO office has my work email as well which has been used to communicate with me. I did not receive any email at my work location nor by mail. I consider the communication by mail the most efficient one in cases like this because it is always trackable. 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”). Dismissal of the Hearing Request as a Sanction At the outset, we note that an Administrative Judge has inherent powers to conduct a hearing and issue appropriate sanctions. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7, § III(D) (Aug. 5, 2015). AJs have broad authority over the conduct of hearings. 29 C.F.R. § 1614.109 et seq. 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 Commission has held repeatedly, however, that sanctions must be tailored to each situation, applying the least severe sanction necessary to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep’t of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001); Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission’s interest lies in deterring the underlying conduct of the non-complying party and protecting its administrative process from abuse by either party to ensure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). 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 2021002236 4 integrity of the EEO process as a whole. See Id.; Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). A complainant must act with due diligence in pursuit of her claim. Alice S. v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020). In Alice S., the AJ dismissed the complainant’s hearing request on the same grounds as in the instant case: failure to attend the initial conference and failure to respond to the AJ’s show-cause order as to why she did not attend the initial conference. The complainant in Alice S. admitted she did not open her emails until nine days after the deadline for responding to the show-cause order had passed. She argued, however, that she failed to recognize correspondence from the AJ because she expected such correspondence to come directly from the AJ rather than from the Commission. We found that the complainant should have been opening her emails from the Commission while her case was pending, and that in not doing so, she clearly exhibited a lack of due diligence. We find that same lack of due diligence is evident in the case before us. Here, due diligence would include providing an email address at which one is likely to be reached. If Complainant had concerns that emails pertaining to her case were ending up in her spam folder, she should have either listed her work email address on the hearing request form or checked the spam folder on her personal email address regularly while her hearing request was pending. Further, while Complainant claims that she “was clear that I wanted to receive correspondence by mail,” there is no evidence in the record that Complainant informed the AJ of this request. In addition, as noted by the AJ, Complainant, who was registered in the EEOC Public Portal and could view her file through the portal, accessed the scheduling order on September 28, 2020, at 7:43 p.m. using her personal email address as indicated in the electronic activity log. Thus, as in Alice S., we agree that Complainant failed to provide adequate justification for her failure to attend the initial conference or otherwise respond to the AJ’s orders. Accordingly, we find that the AJ appropriately tailored the sanction in this case to, among other things, ensure compliance with AJ Orders in the future. Disparate Treatment Turning to the merits of the instant matter, to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the members of the review committees for the positions at issue articulated legitimate and nondiscriminatory reasons for not recommending that Complainant be interviewed by the selecting officials. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). They averred that although Complainant met the qualifications for the positions in question, her cumulative scores on the various selection criteria were not as high as those of the applicants that the selecting officials chose to interview. IR1 121-23, 142-43, 151; IR2 89, 102, 107-08, 110-11, 113, 117-19, 123-25, 130-31, 139, 149-51. 2021002236 5 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Here, the record supports that Complainant was qualified for the positions she sought. However, the members of both review committees averred that her experience in some of the rating criteria was not as robust as the experience of the applicants who were interviewed by the selecting officials. For example, one Systems Specialist who was on the review committees pointed out that Complainant did not address her ability to identify training needs or make recommendations for process improvements, and that the applicants who were interviewed did address this element in their responses. IR 140. When considering the evidentiary record, we agree with the Agency that Complainant’s qualifications were not plainly superior to the qualifications of those interviewed by the selecting officials. Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Beyond her own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements nor documents which contradict or undercut the explanations provided by the review committee members or which would cause us to question their truthfulness as witnesses. Likewise, Complainant has not presented any documentary or testimonial evidence establishing the presence of at least one of the indicators of pretext listed above. As a result, the Commission finds that Complainant was not discriminated against as alleged. 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 decisions because the preponderance of the evidence of record does not establish that discrimination occurred. 2021002236 6 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). 2021002236 7 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 September 8, 2022 Date