[Redacted], Chris B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionFeb 24, 2022Appeal No. 2022000235 (E.E.O.C. Feb. 24, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chris B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000235 Hearing No. 540-2018-00277X Agency No. 4E-852-0222-17 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 7, 2021 final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Sales, Services/Distribution Associate, PS-6, at its North Valley Post Office (Finance) in Albuquerque, New Mexico. 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. 2022000235 2 On November 21, 2017, Complainant filed his complaint alleging discriminatory harassment beginning in June 2017 and ongoing based on race (Caucasian/Native American), color (brown), religion (Jewish), national origin (Mexican American), age (over 40), and in reprisal for prior EEO activity when: 1. On July 5, 2017, he discovered that the Family Medical Leave Act (FMLA) sick leave he requested for the week of June 10 - 17, 2017, was entered as FMLA Leave Without Pay (LWOP); 2. On July 12, 2017, his manager yelled at him in the presence of his coworker; 3. On July 18, 2017, he was asked to appear for an investigative interview; 4. On August 17, 2017, he was questioned about not following a direct order; subsequently, on August 21, 2017, he was given a written workflow chart to follow; and 5. In the month of December 2017, he was displaced from his primary bid job (boxing mail) and sent to work the window while someone else performed his bid. Complainant also alleged discriminatory harassment based on race (Semitic), color (Hispanic), religion (Judaism), sex (male), and disability (physical) when: 6. On December 26, 2017, the futon mattress was removed from the breakroom. After its investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency indicated that Complainant failed to establish that he was unlawfully harassed as alleged. Regarding claim 1, the Agency stated that its records indicate that Complainant took no leave on June 10th; he was off on June 11th; he took no leave on June 12th and 13th; he used 8 hours FMLA sick leave on June 14th; he used 4 hours FMLA annual leave and 4 hours FMLA sick leave for June 15th; he was off on June 16th; and he used 8 hours of FMLA LWOP on June 17th because he did not have 8 hours left to cover his FMLA sick leave. Regarding claim 2, Complainant indicated that on July 12, 2017, the manager yelled at him for tracking a customer’s package when there was a line at the sales counter. The manager denied the incident. Complainant did not indicate the similar incident occurred other than this one occasion. Regarding claim 3, the Agency indicated that Complainant was asked to appear for an investigative interview because its employees reported that Complainant was sleeping on the job. After Complainant was interviewed by special agents, the case was closed as the allegation was unfounded. Complainant explained that he stretched and lied down prior to his shift beginning and clocked in afterward. There is no evidence Complainant was subjected to any adverse action as a result of the investigative interview. Regarding claim 4, the Agency indicated that Complainant was not casing the mail in a timely manner and was not prioritizing his work. Upon his request, Complainant was given a written flow chart with a list of tasks to be completed chronologically from start to finish during the day. 2022000235 3 Regarding claim 5, the Agency stated that as a Sales, Services/Distribution Associate, Complainant’s duties involved not only boxing the mail but also working on the window. Regarding claim 6, the Agency indicated that the futon mattress in the breakroom, where employees dined, was removed due to a health reason as it was old and collecting germs for the past decade. The breakroom was used by employees to eat and employees were not allowed to use the futon mattress to sleep during work hours. Complainant did not allege that he was denied a reasonable accommodation for his claimed disability. Even if he had made such a claim, we find that Complainant has not shown that he required any such accommodation. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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 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 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 fact finder 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 adopting the AJ’s decision. 2022000235 4 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). 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). 2022000235 5 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 February 24, 2022 Date Copy with citationCopy as parenthetical citation