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

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2021002609 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arnold C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002609 Hearing No. 450-2018-00303X Agency No. 1G-754-0004-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 17, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Operations Industrial Engineer, EAS 21, at the Agency’s North Texas Processing and Distribution Center in Coppell, Texas. On January 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African), national origin (Sierra Leonean), color (black), and in reprisal for prior protected EEO activity when he was separated from his postal position, effective September 25, 2017. 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. 2021002609 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the report of investigation and viewing the evidence in the light most favorable to Complainant, he failed to create a genuine issue of material fact to establish discrimination based on race, national origin, color, or reprisal for prior protected EEO activity. Assuming for the sake of argument that Complainant could establish a prima face case, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions. As the AJ concluded, the Agency removed Complainant from his position because of “Unsatisfactory Attendance” and “Failure to Adhere to Reporting Schedule including Absent Without Leave (AWOL).” As of August 14, 2017, when the Notice of Proposed Removal was sent to him, Complainant had been absent from work since October 5, 2016, which included 824 hours of AWOL beginning on March 8, 2017. The Notice of Proposed Removal also explained that Complainant “did not . . . attend an evaluation as instructed in [a prior] letter dated October 17, 2016.” This refers to a psychiatric evaluation that Complainant was instructed to undergo after a physician found during a fitness-for-duty evaluation that Complainant could be a danger to himself and other employees. This assessment was based on statements Complainant previously made, including that coworkers “have injected high doses of electromagnetic radiation into my body every day in my office.” The physician recommended Complainant receive a psychiatric evaluation before being allowed to return to work. Complainant never attended this evaluation and was therefore placed on sick leave.2 The Notice of Proposed Removal went on to explain the multiple instances where Complainant was ordered to follow up on his excessive absences but failed to do so. On February 10, 2017, Complainant’s supervisor sent him a memorandum regarding an absence inquiry, in which she told Complainant that “documentation is required for your extended absence and documentation that you are able to return to work and expected date of return [is] due by February 15, 2017.” Complainant responded to this memorandum by letter dated February 14, 2017, but he did not provide the necessary documentation. 2 The ordering of the fitness-for-duty evaluation based on the “bizarre statements” Complainant’s supervisor heard him make, and the physician’s conclusion that Complainant was not fit for the duty at that time, at which point he was sent home on sick leave, were the subject of a separate appeal before us, where we found Complainant did not show these actions were discriminatory. Kyle S. v. United States Postal Serv., EEOC Appeal No. 2019000178 (June 4, 2019). 2021002609 3 He claimed that he was subjected to “workplace aggression and unsafety through harassment, intimidation by violence, humiliation, etc.”3 and therefore stated that he felt the ordered psychiatric examination was “needless” and that he “declined to do the evaluation.” He ended his letter by saying, “Yes, it is my responsibility to report for duty, and I would report willingly and gladly to any work environment I perceive to be safe for me, but no less.” On March 1, 2017, Complainant’s supervisor sent him another memorandum, which informed him of a pre-disciplinary interview scheduled for March 7, 2017, at 2:00 P.M. “to discuss [Complainant’s] employment status.” The memorandum also informed Complainant in bold type that his “attendance at this meeting is mandatory.” Complainant failed to appear. Finally, Complainant’s supervisor sent another memorandum to Complainant with the subject “AWOL Notice,” which informed him, “You have not reported, contacted your supervisor, or have provided any documentation to substantiate your entire period of absence. Therefore, your time is recorded as AWOL . . . for the following period: March 8, 2017 to the present.” Complainant did not report to work or provide documentation to his supervisor by the time the Agency issued the Notice of Proposed Removal on August 14, 2017. The AJ further found that “Complainant fails to identify any material facts that show that the Agency’s” articulated reason as stated in the “removal action was a pretext for discrimination.” The AJ also found that the record contained no similarly situated employees who were treated more favorably than Complainant but had similar attendance issues. ANALYSIS AND FINDINGS 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 nonmoving 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 AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. 3 We note that no claims other than Complainant’s removal were accepted for investigation in this case, and Complainant does not dispute this on appeal. 2021002609 4 Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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). 2021002609 5 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). 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 December 9, 2021 Date