0120172890
06-14-2018
Lonny H,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lonny H,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120172890
Hearing No. 430201500017X
Agency No. 1K234001113
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, the Agency's July 20, 2017 Final Order concerning an 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.
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Tractor Trailer Operator (PS-8) at its Processing and Distribution Center in Norfolk, Virginia.
On July 7, 2014, Complainant filed an EEO complaint alleging discrimination and harassment by the Agency on bases of sex (male) and reprisal for prior protected EEO activity when:
1. On March 15, 2013, his supervisor spoke to him in a disrespectful manner, instructing him to "step up and do what's right," and "you need to speed up because you are always late on run #103,"
2. On May 16, 2013, Management failed to address his concerns regarding female coworkers refusing to assist him in loading and unloading his trailer, and
3. On August 8 and 27, 2013, Management denied his requests for assistance unloading his truck and instructed him to unload the truck himself.
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. The AJ assigned to Complainant's case notified the parties sua sponte of an intent to issue a decision without a hearing. Over Complainant's objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its Final Order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. 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. (as revised, August 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).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. We find Complainant failed to establish such a dispute. The majority of Complainant's appellate argument cannot be adjudicated as part of this complaint. Additionally, Complainant disputes material facts related to the Agency's legitimate nondiscriminatory reasons for its actions, but fails to address the AJ's finding that he has not shown an inference of discrimination, which is necessary for establishing a prima facie case, and a threshold requirement for a hearing.
On appeal, Complainant addresses some of the material facts pertaining to the Agency's legitimate nondiscriminatory reasons for its actions. Notably, he explains his assertion, referenced in the Decision, that one of his supervisors ("S1") was a "slave-driver," by describing how S1 followed him, invaded his personal space by standing over him, and yelled at him, evincing a hostile work environment. However, Complainant's reference to sex discrimination is oblique and insufficient to warrant a reversal. Specifically, he asserts that female mailhandlers would not assist him, but would assist contract drivers (sex not specified), and states that "this facility...was managed by all women and I think it was hard for [his second level supervisor] to listen and understand what some men would tell her." Neither statement indicates Complainant was specifically targeted because of his sex or prior EEO activity. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
On appeal, Complainant also provided numerous additional dates (in addition to Claim 3 of the instant complaint) where S1 allegedly failed to instruct unoccupied mailhandlers to assist him with loading and unloading his truck. Complainant also cited "at least 5" occasions when S1 refused to sign his swing slip. However, these do not appear in his formal complaint and he does not appear to have raised them with the AJ, so they will not be adjudicated here. If Complainant wishes to pursue these new harassment claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
Likewise, we have long held that complaints involving other administrative proceedings fail to state a claim within the meaning of its regulations. See 29 CF.R. � 1614.107(a)(1); Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). Complainant's allegations of unsafe facilities, and an incident when he was instructed to drive a truck with a broken front spring, concern workplace safety. Therefore, the proper forum to address these concerns is the Department of Labor's Occupational Health and Safety Administration ("OSHA"). See Demarcus I. v. United States Postal Serv., Appeal No. 0120161563 (Aug. 12, 2016); Complainant v. United States Postal Serv., Appeal No. 0120151653 (Aug. 14, 2015). Similarly, Complainant's allegation of general noncompliance with Agency policies, such as inaccurate schedulers, and management's apparent indifference to enforcing rules, must be raised through the proper internal Agency processes, not this Commission.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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
June 14, 2018
__________________
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.
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