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

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2020005158 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diego A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020005158 Hearing No. 480-2019-00525X Agency No. 4F-920-0116-18 DECISION 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 July 14, 2020, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Main Post Office in El Cajon, California. On September 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his age (53), and in reprisal for prior protected EEO, when: 1. on May 31, 2018, Complainant was instructed not to take any comfort stops off his bid route line of travel; 2. on June 13, 2018, Complainant’s supervisor recorded an incorrect amount of time for a restroom break when she was conducting an observation of Complainant; and 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. 2020005158 2 3. on June 14, 2018, Complainant was subjected to an investigative interview and subsequently issued a Letter of Warning on June 30, 2018. Complainant also alleged that the Agency subjected him to retaliatory harassment when: 4. on September 24, 2018, management walked Complainant’s route with him; and 5. in late 2018, Complainant was accused of delaying a parcel that was not in his possession.2 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. Subsequently, on July 7, 2020, the AJ issued a decision by summary judgment in favor of the Agency. Assuming that Complainant established a prima facie case of age discrimination and retaliation for claims 1-3, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, management officials stated that they instructed Complainant to take breaks along his route, but he went to an off-route location, which was considered a “time-wasting practice” and incurred additional operation costs for work hours, mileage, and gas. Regarding claim 2, a supervisor observed that Complainant was away from his vehicle for approximately thirteen minutes, and when she asked where Complainant was, he responded that he was in the restroom. The Agency noted that it did not record any time that Complainant was attending to his personal needs. AJ Decision at 8. With respect to claim 3, Complainant was subjected to an investigative interview for failure to follow instructions and unacceptable conduct. Specifically, when Complainant was asked to provide a projected leave and return time for the day, he responded: “What don’t you understand? Don’t you have ears?” The Agency issued the Letter of Warning after it determined that Complainant did not provide an acceptable reason for his conduct. The AJ then found that Complainant did not establish that the reasons were pretexts for discrimination. Id. at 9. 2 The Agency dismissed Complainant’s claim that management violated a prior grievance settlement and did not allow him to clock over to union time during an investigative interview, as a collateral attack on the proceedings of another forum. Report of Investigation at 80-1. We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). Complainant did not contest the Agency’s dismissal of this claim in his appeal; as such, we will not address it in the instant decision. 2020005158 3 The AJ also found that Complainant did establish that the Agency subjected him to retaliatory harassment because he did not show that the alleged actions were connected to his protected EEO activity. With respect to claim 4, management officials explained that they walk every employee’s route at least once a year, but they walked Complainant’s route more often because he expressed concerns for his safety and called in daily for additional time to complete his route. Regarding claim 5, management officials explained that when a package was not scanned, they asked Complainant if he remembered seeing it, but they did not accuse him of delaying the package. The AJ concluded that Complainant did not establish that there were any material facts in dispute, and she granted the Agency’s motion for summary judgment. Id. at 10-11. Thereafter, the Agency issued its final action 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). 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 he 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. Complainant asserts that there are disputes of material facts. He argues, for example, that the Agency did not explain why other carriers were allowed access to the rest location while Complainant’s access was denied,3 or why he was subjected to tracking and “excessive observation” to monitor his movements. However, we find that Complainant has not provided any evidence to establish a genuine dispute of material facts. Mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). 3 The AJ noted that Complainant did not establish that management officials were aware that the other named employees were frequenting the same rest location. AJ Decision at 7. 2020005158 4 Complainant also argues that the AJ did not address his Motion to Compel, but he provided no evidence that he filed any such motion. According to Complainant, his motion was never addressed in transition between different AJs. However, Complainant did not provide a copy of a Motion to Compel, nor any details of the motion, such as the date of filing or which AJ he filed the motion with. 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. Accordingly, we AFFIRM the Agency’s final decision 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. 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. 2020005158 5 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. The court has the sole discretion to grant or deny these types of requests. 2020005158 6 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 March 2, 2022 Date