[Redacted], Christopher M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionOct 20, 2021Appeal No. 2020003761 (E.E.O.C. Oct. 20, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020003761 Hearing No. 410-2019-00441X Agency No. 6X-000-0002-19 DECISION On June 12, 2020, 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 May 13, 2021 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 Automotive Technician, 08/FF, at the Agency’s North Metro Vehicle Maintenance Facility (VMF) in Norcross, Georgia. On January 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Asian American) and national origin (Vietnamese) when: 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. 2020003761 2 1. Beginning from the middle of September 2018 to the middle of October 2018, and specifically on October 12, 2018, October 13, 2018 and October 15, 2018, he was hazed, picked on, laughed at, and sabotaged; and 2. On October 15, 2018, Complainant was terminated during his probationary period. Complainant identified the Acting Manager (Caucasian, American), who served as his immediate supervisor as the management official responsible for the alleged discrimination. The Acting Manager was the individual who recommended that Complainant not be retained. Report of Investigation (ROI), p. 192. Complainant began employment on August 27, 2018. He was the only probationary employee during the relevant period. He first started working at the Atlanta VMF but was allowed to transfer to Norcross after 30 days because it was closer to his home. He told his new coworkers that he was Vietnamese when he transferred. Complainant claimed that he was singled out for ridicule, hazed, and harassed because of his race and national origin. However, Complainant did not offer any evidence to support his claim. Complainant claimed that his co-workers labeled him a “troublemaker,” laughed at him and called him names, and told him not to “mess with white/black man radio.” The record contains the affidavits of the named coworkers, who each denied that any of the alleged conduct occurred. Complainant was initially closely observed because he was in his probationary period. Complainant received satisfactory evaluations for his 30-day and 60-day evaluations, but the Acting Manager rated him unsuccessful in two categories for the 80-day evaluation. On October 15, 2018, Complainant was terminated, three days before the end of his 90-day probation period. On that day, a construction crew was on the premises, replacing the roof, and the environment was hectic and loud. At some point, another employee noticed a crushed trash can under the hoist and vehicle that Complainant had been operating. Complainant had lowered the vehicle and failed to ensure the area beneath the vehicle was clear of obstacles. Complainant then backed the vehicle out of the building and took it for a test drive with the garbage can still lodged under the vehicle. After driving for an unknown distance, Complainant returned the vehicle to the shop to look for a scraping noise. This was brought to the Acting Manager’s attention, who later called Complainant into his office and asked him if there was anything that Complainant wanted to tell him. Complainant responded, “No.” Complainant later was observed beating the garbage can into shape with a hammer. The Acting Manager determined that Complainant had committed a safety infraction and failed to report it. The Acting Manager faulted Complainant for failing to clear the areas underneath the LLV, before lowering it. As a result, the Acting Manager decided to terminate Complainant’s employment. Complainant disputed the charge and stated there was no accident. The Agency offered the statements of three witnesses, attesting that the accident did happen. Complainant maintained “the trash can being crushed is a mystery to me.” He stated on the day of his termination, “there was more at risk then an empty plastic trash can.” 2020003761 3 He claimed that management engaged in numerous violations and that his own safety was in jeopardy. He also asserted that the Agency violated the collective bargaining agreement regarding the required notice of his termination. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a summary judgment decision on May 11, 2020, finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. 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. Here, however, Complainant has failed to establish such a dispute. Complainant has failed to offer any evidence that the Agency’s actions were based on discriminatory animus. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020003761 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). 2020003761 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 October 20, 2021 Date Copy with citationCopy as parenthetical citation