Tristan W,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJul 11, 2017
0120152084 (E.E.O.C. Jul. 11, 2017)

0120152084

07-11-2017

Tristan W,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Tristan W,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120152084

Hearing No. 440201400189X

Agency No. 1J607002314

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), the Agency's April 21, 2015 final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant had been working for the Agency for about five weeks as a Part-time Seasonal Employee ("PSE") Mail Processing Clerk at the Agency's Chicago International Military Service Center in Schiller Park, Illinois.

On January 30, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when, on December 17, 2013, he was issued a Notice of Removal.

After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. On March 16, 2015, the AJ, citing Complainant's failure to comply with her orders, including a January 16, 2015 Show Cause Order, dismissed Complainant's hearing request, and remanded his complaint to the Agency for a final decision.

A review of the record includes, but is not limited to the following facts:

During the relevant time frame, Complainant was still within his 90 day probationary period with the Agency, and as a Seasonal PSE, his term was slated to end in a few weeks, after the holidays. He reported to the Supervisor, Distribution Operations, ("S1") and the Manager, In-Plant Support was his second line supervisor ("S2"). S1 spoke to Complainant multiple times and reported to S2 about Complainant's unprofessional conduct, which included, among other things, constant talking (both to other employees and on the phone), dress code violations, and use of profane and inappropriate language. The record also reflects that Complainant generally got along with his coworkers, and prior to his removal, he had not been subject to any disciplinary action during his PSE term.

Under the November 2010 Collective Bargaining Agreement ("CBA") between the Agency and the Union, a PSE could be "disciplined or removed within the term of their appointment for just cause."2 If the PSE, within " past six months had been employed for 120 calendar days or completed 90 work days (i.e. the "90 day probationary period") would have access to the grievance arbitration procedure." (i.e. "in the past six months [the PSE] had been employed for 120 calendar days or completed 90 work days").

Generally, a probationary PSE such as Complainant, would not have access to the grievance arbitration procedure. However, the CBA provides that "[i]n the case of removal for cause within the term of an appointment, a PSE shall be entitled to advance written notice of the charges against him/her in accordance with the provisions of Article 16 of the [CBA]." Since Complainant was subject to removal during his term, under the CBA he was "entitled to an advance written notice of the charges against [him] and shall remain either on the job or on the clock at the option of the Employer for a period of thirty (30) days. Thereafter, the employee shall remain on the rolls (nonpay status) until disposition of the case has been had either by settlement with the Union or through exhaustion of the grievance-arbitration procedure." 3

The Agency's, Standards of Conduct provide that "there must be no tolerance of violence or threats of violence by anyone at any level of the [Agency]. Similarly, there must be no tolerance of harassment, intimidation, threats, or bullying by anyone at any level. Violation of this policy may result in disciplinary action, including removal from the [Agency]." See Employment and Placement Handbook EL-312, � 665.24 (Nov. 2011).

On December 16, 2013, the belt where Complainant was working broke, and he and several coworkers were waiting for a mechanic to fix it, when his (female) coworker ("C1") approached. C1 allegedly singled Complainant out from the group, which included Complainant's (female) coworker and friend ("C2") and several male coworkers. C1 called them "dumb ass kids" and asked if they had "any questions [about their jobs]." In a tone described as "rude, loud, and disrespectful," C1 asked Complainant to flip mail on another belt that was still running. Complainant told C1 to "get out of [his] face" and asked why she was telling him to work but not the others. A verbal altercation ensued as Complainant and C1 were "going back and forth," cursing and yelling at each other. C2 went and got S1, who supervised both Complainant and C1. According to S1, the mechanic also informed him that Complainant "went off on" C1 and called her a "bitch." It appears the altercation concluded when, realizing Complainant would not follow her instructions to work on another belt, C1 went to report the altercation to S2.

On December 17, 2013, S1 issued Complainant a Notice of Removal, citing conduct unbecoming of an Agency employee and poor performance. S1 asked a supervisor from a different tour to sit in on the removal meeting as a witness. The witness's account provides that "once the Removal Notice was issued, [Complainant] suddenly became very loud, hostile and belligerent" and "kept repeating 'Yo G this ain't going to fly, this is Mother fucking bullshit'...for a couple of minutes. [Complainant] suddenly got up and out of his chair and threw down the Notice of Removal in a violent manner to the floor and at this time his body language suggested as if he was going to go attack [S1]...." Complainant did not leave the property until after police were called.

Complainant argues that the Agency applied its policy unfairly based on his sex, as C1 was not similarly disciplined for the same actions. He further alleges disparate treatment in that he was not given an opportunity to give his side of the story, and he was not provided due process of an investigation before his employment was terminated.

In its final decision, the Agency found that Complainant failed to prove discrimination as alleged. The instant appeal followed.

ANALYSIS

Hearing Request

On appeal, Complainant asks that we reverse the AJ's dismissal and reinstate his complaint for a hearing. Our 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") Chap. 7, � III(D) (Aug. 5, 2015). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A0373 (Apr. 21, 2005); Roundtree v. Dep't of Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). In the instant case, the AJ's dismissal of Complainant's hearing request constitutes a sanction against Complainant, as it was based on his failure to respond to or comply with any of the orders she issued regarding his complaint.

The Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and 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 Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Factors for "tailoring" a sanction, or determining whether a sanction is, in fact, 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; and (4) the effect on the integrity of the EEO process. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015) citing Gray, Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). Prior to issuing a sanction, the AJ must first issue a Notice to Show Cause to the non-complying party. EEO-MD-110, Chap. 7, � III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).

Where a party does not respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id.

Complaint does not dispute that he failed to respond or comply with the AJ's orders, but argues that his circumstances at the time they were issued prevented him from complying. He also appears to argue that he placed the parties on notice, recounting that he called Agency Counsel on December 10, 2015 and informed her that he "did not always receive [his] mail in a timely manner" because he was homeless and "would often sleep in different places nightly."

Even so, a fair reading of the record demonstrates that Complainant was aware of his obligations under the AJ's Order, as well as how to request an extension based on the limitations of his circumstances. Specifically, the AJ's October 6, 2014 Acknowledgment and Scheduling Order provided deadlines for each step of the hearing process, and indicated that Complainant and the Agency were to engage in discovery then submit documentation to the AJ in 90 days (December 8, 2014). It also provided that "the deadlines discussed herein will not be extended absent a written request for an extension prior to the deadline showing good cause for the extension." According to the record, Complainant received the Acknowledgement and Order, along with a number of discovery reminder phone calls, emails and mail from the Agency, before the December 8, 2014 deadline. These orders, along with the AJ's Order to Compel, which extended the discovery deadline to December 27, 2014 and her January 16, 2015 Order to Show Cause, all contained the address, phone, and fax number for the relevant EEOC District Office, along with the AJ's direct email address. Yet, there is no evidence that Complainant ever sought an extension or tried to contact the AJ.

These facts, coupled with the broad authority the Commission grants to its AJs as to how hearings are conducted, require a finding that the AJ did not abuse her discretion when she dismissed Complainant's hearing request.

Disparate Treatment

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 ("EEO MD-110"), at Chap. 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").

A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. United States Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant alleges that S1 and S2 knew about, but did not discipline C1 and other female employees ("C3" and "C4") for engaging in the same types of altercations as the one on December 16, 2013, which allegedly led to his termination. According to Complainant, on December 16, 2013, prior to confronting him, C1 engaged in an altercation with C4, threatening to "beat her ass," violating the Agency's "no tolerance policy." In statements for the record, C2 cites multiple altercations between C1 and female employees where neither party was disciplined. For instance, on November 23, 2013, C1 threatened to "knock [C4] out," and on or around November 24, 2013, C1 allegedly "pulled a switch blade on [C3]" as retaliation for complaining about her to S1. However, S1 and S2 both allege that they did not know of any altercation involving C1 or among the other female employees that rose to the level of Complainant's actions on December 16, 2013.

When asked if he was approached by or questioned any witnesses, S1 stated that it was his understanding that Complainant called C1 a bitch, and that "no one heard anything." C2, who witnessed the altercation from approximately 7 to 10 feet away told S1 what she saw when she went to get him. According to C2, S1 did not ask her for a written statement, only a "verbal statement" of what she saw. S1 did not seek written or verbal statements from any of Complainant's coworkers at the belt even though multiple witness accounts in the record, including those of both Complainant and C1 indicate that others were present for the altercation. S1 avers that that C1 was "involved in disagreements with employees regarding the positions they wanted to work, but nothing warranting removal." S2 asserts that he was unaware of any altercations among C1, C2, C3 and C4 because he did not supervise them. We note that in response to the investigator's question "Why was Complainant terminated and [C1] was not" S2 merely states "[a]sk [C1]." Further, there is no evidence that S1 or S2 took disciplinary action against C1 for the altercation alleged in the instant complaint.

In response, the Agency argues that none of the proffered comparators (C1, C3 and C4) could be used to establish a prima facie case of discrimination because they were not "similarly situated" to Complainant. In order to be similarly situated the comparative employees must have dealt with the same supervisor and have been subjected to the same standards and have engaged in the same conduct. See Williams v. United States Postal Serv., EEOC Appeal No. 0120011545 (Sept. 14, 2001) citing Mazzell v. RCA Global Communications, Inc., 642 F. Supp. 1531, 1537 (S.D. NY 1986) aff'd 814 F.2d 653 (2d Cir. 1987); see also Payne v. Illinois Central R.R., 665 F. Supp 1308, (W.D. Tenn. 1987) (court held that similarly situated generally means that the persons who are being compared are so situated that it is reasonable to believe they would receive the same treatment in the context of a particular employment decision).

We find C3 and C4 are not "similarly situated" to Complainant because, they are permanent employees who work in different positions than Complainant. On the other hand, C1 and Complainant were both PSEs, held the same position, and reported to the same supervisors. As it is a point of contention among the parties, we note that there is insufficient evidence in the record to support the Agency's argument that C1 is not similarly situated to Complainant based on their performance reviews. However, we agree with the Agency's alternate rationale, that Complainant was not "similarly situated" to C1 because Complainant in his probationary term.

The Commission has long held that where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Complainant v. Dep't of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015) citing Coe v. Department of Homeland Sec., EEOC Appeal No. 0120091442 (Oct. 7, 2011); Kaftanic v. United States Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988). The record provides that C1 began working for the Agency as a PSE in May 2013, while Complainant started in November 2013. Under the CBA, any disciplinary action taken against C1 for the December 2013 altercation would be subject to the grievance arbitration procedure since it occurred after she completed her 90 day probationary period. C1 is not "similarly situated" to Complainant, who, as a probationary employee within his 90 day evaluation period, would be subject to disciplinary actions at the Agency's discretion. In other words, given his probationary status, there is no expectation that Complainant and C1 would be subject to the same disciplinary action, even if they committed the same infraction.

Finally, the record supports Complainant's allegation that he was not interviewed and the altercation was not investigated before his termination, however, there is no evidence that it was because of his sex, so it is beyond the jurisdiction of this Commission. Likewise, as Complainant has not established a prima facie case of discrimination, we decline to examine the Agency's proffered legitimate nondiscriminatory reasons for its actions.

CONCLUSION

Having thoroughly reviewed the record, we 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 (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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

July 11, 2017

__________________

Date

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.

2 See APWU-USPS 2010-2015 Collective Bargaining Agreement, Appendix A, APWU Postal Support Employee Memoranda Article 19 Handbooks & Manuals, � 3(B)(3) at 288. (provided by the Agency in the record, with reference to Article 16, not included in the record).

3 APWU-USPS 2010-2015 Collective Bargaining Agreement, Art. 16.5, available at http://www.apwu.org/sites/apwu/files/resource-files/APWU%20Contract%202010-2015_0.pdf (not in the record, but referenced in the relevant CBA provision provided in the record).

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