Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120150295 Hearing No. 420-2013-00193X Agency No. 1G-361-0008-12 DECISION On October 24, 2014, Complainant filed an appeal from the Agency's September 30, 2014, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) Mail Processing Clerk, at the Agency's Processing and Distribution Center in Montgomery, Alabama. The record indicated that her one-year term appointment expired and the Agency chose not to renew her appointment. On November 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on August 1, 2012, she was notified her PSE Clerk appointment would not be renewed. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ issued her Acknowledgment and Order on August 6, 2013. The Order stated that discovery shall be completed within seventy-five (75) calendar days from the date of receipt of the Order. On August 28, 2013, the Agency submitted its first discovery request which included interrogatories, request for documents and request for admissions. The AJ's Acknowledgment and Order provided that a "party must respond to a request for discovery within thirty (30) calendar days from receipt of the request." On October 30, 2013, the Agency filed a Motion to Compel. In the motion, the Agency noted that Complainant received its discovery request on August 30, 2013, but failed to respond to the request. The Agency noted that it contacted Complainant on October 23, 2013, regarding the discovery request. The Agency asked that the AJ compel Complainant to respond to the interrogatories and requests for admissions and documents. On November 20, 2013, the AJ granted the Agency's Motion to Compel and ordered Complainant to respond within 15 calendar days of receipt of the Order. On December 13, 2013, the Agency filed a Motion to Dismiss the hearing. The Agency noted that it had not received any information from Complainant following the AJ's Order compelling Complainant to respond to the Agency's discovery requests. In response to the Agency's motion, the AJ issued her Order to Show Cause on December 19, 2013, asking Complainant to respond to the discovery requests within 15 calendar days or the hearing would be cancelled and the matter remanded to the Agency. On August 1, 2014, Complainant responded to the Agency's Motion to Dismiss. For the first time, Complainant asserted that she submitted to the Agency a list of witnesses as requested. She also indicated that the Agency failed to provide evidence of her bad faith in failing to respond to the discovery request or that there is prejudice for her failure to respond. She argued that there was no record of her causing the delay. As such, she requested that the AJ deny the Agency's motion. On August 22, 2014, the AJ issued her order cancelling the hearing and remanding the matter back to the Agency for a final decision. The AJ found that Complainant waived her right to a hearing based on her failure to comply with the AJ's orders. The AJ noted that Complainant was warned that failure to comply could be seen as a waiver of her right to a hearing. Based on Complainant's failure to respond to the AJ's orders and the Agency's discovery requests, the AJ determined that the hearing should be cancelled. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed. She argued that the AJ erred in cancelling the hearing. She asserted that she provided the AJ and the Agency with her list of damages, the evidence on which her claim for compensatory damages are based, a list of the witnesses and the substance of their testimony who she intended to call at the hearing and the facts which would support a decision in her favor. She argued that she had provided this information during the investigation and the request was redundant. She also noted that her father had a stroke in March 2013 and she had a baby in November 2012. Due to these events, Complainant indicated that she was less than diligent in her responses. In summary, Complainant stated that the record does not show that the alleged failure of the Complainant was willful, and furthermore the request for evidence would result in redundancy. As such, she requested that the matter be remanded back to the AJ for a hearing. The Agency asked that the Commission affirm its decision finding no discrimination. ANALYSIS AND FINDINGS Sanction 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(0(3). Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 7, § III(D) (November 9, 1999). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the parry 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, or other actions, as appropriate. 29 C.F.R. § 1614.109(0(3). However, such 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 parry from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion to impose a harsher sanction. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Upon review, we find that the AJ's dismissal of the hearing was an appropriate sanction for Complainant's actions. Complainant argued that events occurred in March 2013 and November 2012 that caused her to be less than responsive to the AJ's orders and the Agency's discovery requests. We note that Complainant did not inform the AJ of these events prior to her dismissal of the hearing. Complainant asserted that she provided a list of witnesses to the Agency. However the record contains no such list. The AJ and the Agency did not indicate that they received any such list. We also note that Complainant failed to respond to any of the Agency's discovery requests including responses to interrogatories, requests for documents and requests for admissions. Complainant did not timely respond to the AJ's Order to Show Cause. The record stated that the AJ issued her order in December 2013. Complainant responded to the Agency's Motion to Dismiss in August 2014. Complainant did not explain her nine month delay. Based on the record before us, we find that Complainant failed to comply with the AJ's Acknowledgment and Order, the AJ's Order to Compel, and the AJ's Order to Show Cause. Based on Complainant's inaction, we find that the AJ's cancellation of the hearing was an appropriate sanction. 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, at 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"). 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for not renewing Complainant's PSE Clerk appointment when it expired at the end of her one-year term. The Supervisor averred that Complainant's appointment was not renewed due to her performance issues, specifically that she would not work, talked constantly and took too many breaks. Based on these issues, the Supervisor recommended to the Manager that Complainant's appointment not be renewed. The Supervisor stated that he informed Complainant of the performance problems and she worked better the last two weeks of her appointment. However, he felt that it was too late. He also indicated that he loaned her out to other supervisors but was told that she was not very good. Another supervisor (Supervisor 2) averred that Complainant had a bad attitude about her job. Supervisor 2 noted that Complainant would report to work late, return from breaks and lunch late, would leave operations without permission, and work slowly. Supervisor 2 stated that she had an unofficial discussion with Complainant and explained to her the problems with Complainant's work performance and job habits. The Manager averred that she concurred with the Supervisor's decision. She noted that Complainant's quality of work, reliability, dependability, work relations and working methods were unsatisfactory. Based on the record as a whole, we find that the Agency has provided legitimate, nondiscriminatory reasons for not renewing Complainant's appointment. We turn to Complainant to establish that the Agency's reasons were pretext for discrimination based on sex. Complainant asserted that she was not provided with an evaluation nor was she given feedback on her work. We find that Complainant's assertion that she was not provided with feedback is not consistent with the rest of the record. We note that the Supervisor, Supervisor 2 and the Manager all indicated that they spoke with Complainant about her performance. Also, the record included an evaluation which indicated that Complainant had performance issues. Therefore, based on the record, we find that Complainant has not shown that the Agency's reasons were pretext for discrimination based on sex. 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 decision finding 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 April 14, 2015 __________________ Date 2 0120150295 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150295