[Redacted], Chad G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2020001573 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chad G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020001573 Hearing No. 480-2018-00422X Agency No. 4F-900-0231-17 DECISION On December 23, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 19, 2019 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency’s Wagner Station in Los Angeles, California. On July 31, 2017 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment based on race (Asian), national origin (South Korean), sex (male), reprisal (prior protected EEO activity), and disability (bilateral plantar fasciitis) when: (1) on April 24, 2017, after he had already been approved for overtime, he was the only carrier that management instructed to rush his return to office duties and to clock out; (2) on April 26, 2017 and other dates, he was subjected to a hostile work-environment when management constantly kept him under 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. 2020001573 2 observation, admonished him without just cause, denied his request for PS Forms 3996, and otherwise harassed him; (3) on April 26, 2017, he was counseled for missing a Management Service Point (MSP) scan point that was not placed at the address in question until a week later; (4) on April 29, 2017, he requested his copy of a route observation from January 20, 2017, but his supervisor (S1) did not provide him with a copy; (5) on April 29, 2017, and other dates, he was instructed not to pull or work on his parcel hamper until after he pulled down his mail; (6) on May 1, 2017, he had to check with S1 about that status of his leave request for May 2, 2017 because a week had passed since he submitted it with no response from management; (7) on May 3, 2017, he was ordered to change his restroom break to a location other than the station; (8) on May 17, 2017, he was issued a “verbal warning” for returning to the office with mail on May 13, 2017; (9) on June 3, 2017, he was issued a Letter of Warning; (10) on June 22, 2017, S1 followed him on his route in her personal vehicle during a street observation; (11) on June 23, 2017, when he requested leave for July 3-9, 2017, S1 told him there was no opening for leave that week, even though the dates were open; (12) on June 24, 2017, S1 told him that he was not entitled to the number of breaks that were listed in his medical restrictions; (13) on July 1, 2017, he was given an Investigative Interview for a missed scan on June 29, 2017 and subsequently was issued a Notice of 7-Day Suspension; (14) on October 23, 2017, he was subjected to street observation without notification; (15) on July 10, 2017, S1 instructed him to pull down his mail as soon as all the mail was finalized at the Hot Case, and to submit his PS Form 3996 to her despite there being no regulation or rule supporting her instruction; (16) on July 22, 2017, he was instructed not to speak to the Safety Captain about a safety issue involving a dog problem on his route; (17) on July 26, 2017, he was ordered to return to the street to deliver mail in violation of his 8-hour work-restriction; (18) on August 14, 2017, the manager (M1) threatened him with an “evaluation of your performance;” (19) on or about August 19, 2017, M1 failed to properly address a dog issue on his route; (20) on August 22, 2017, and other dates, management did not provide him with sufficient time to conduct union business and otherwise interfered with his duties as a union steward; (21) on September 12, 2017, management refused to sign Complainant’s PS Form 1571 when he brought mail back to the station, and made disparaging comments to him; (22) on December 4, 2017, S1 instructed him to return to the street, in violation of his medical restrictions, to deliver mail that he brought back to the station, and later screamed, “Failure to Follow Instructions” at him when she saw he was still in the station; (23) on December 5, 2017, M1 instructed him to take his breaks every hour on the hour per the terms of his limited-duty job offer, and refused his request for clarification of the instruction; and (24) on December 5, 2017, management walked his route with him, despite having done so several times in the recent past, and then failed to provide him with a copy of the street observation. 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 timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a summary judgment decision. The AJ subsequently issued a summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2020001573 3 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). 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 or retaliatory animus. Here, however, Complainant has 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 Complainant’s arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated 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 (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. 2020001573 4 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). 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. 2020001573 5 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 9, 2021 Date