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

Equal Employment Opportunity Commission

Mar 23, 2021

Appeal No. 2020003523 (E.E.O.C. Mar. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emmitt E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003523 Hearing Nos. 550-2017-00374X 550-2019-00064X Agency Nos. 4F-945-0100-16 4F-945-0081-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 27, 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., 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. At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Steinbeck Station in Salinas, California. On November 7, 2016, Complainant filed an EEO complaint (Agency Case No. 4F-945-0100- 16) alleging that the Agency subjected him to discrimination and harassment on the bases of race (Caucasian), sex (male), disability (residual fractured right ankle, left ankle, left hip and mental), and age (62), and in reprisal for prior protected EEO activity 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. 2020003523 2 1. on unspecified dates, Complainant’s supervisor forced him to adhere to Delivery Operations Information System (DOIS) projections for casing and leave times; 2. on April 27, 2016, Complainant was issued a Notice of 7-Day No-Time-Off Suspension; 3. on July 26, 2016, Complainant’s supervisor physically assaulted him; 4. on July 26, 2016, Complainant was put on Emergency Placement in an Off-Duty Status; 5. on August 10, 2016, Complainant was issued a Notice of 14-Day No-Time-Off Suspension dated August 3, 2016; 6. on September 22, 2016, Complainant’s supervisor told him that she was tired of his attitude and the Officer in Charge (OIC) accused Complainant of using time-wasting practices and stated that he would walk with Complainant for his entire route; 7. on September 22, 2016, Complainant’s request for a union steward was denied; 8. on September 20, 2016, Complainant requested a Special Route Inspection on his route, but management failed to take any action on his request; 9. on November 17, 2016, Complainant’s supervisor conducted an inspection of his route, but did not provide him with a completed PS Form 3999 or any other feedback; and 10. on February 13, 2017, and other dates, management held discussions with Complainant concerning delivery of his route in front of coworkers, followed Complainant on his route, and harassed Complainant about the time required for him to complete his route. On June 25, 2018, Complainant filed another EEO complaint (Agency Case No. 4F-945-0081- 18) alleging that the Agency subjected him to discrimination and harassment on the bases of race, sex, disability, and age, and in reprisal for prior protected EEO activity when: 11. beginning on or about April of 2018, and continuing, Complainant was constantly harassed and questioned regarding his office and street performance, and his requests for auxiliary assistance and/or overtime and a route adjustment were not granted; 12. on April 6, 2018, Complainant was given an Official Discussion; 13. on April 18, 2018, Complainant was the only employee not allowed to case his “FSS” Mail; 2020003523 3 14. on April 18, 2018, and April 24, 2018, Complainant was denied a union steward;2 15. on May 3, 2018, Complainant was given an Investigative Interview and he was called “stupid”; 16. on May 3, 2018, Complainant was questioned about his medical restrictions; 17. beginning on June 1, 2018, Complainant was required to complete PS Form 1260 when taking an extra break; and 18. on or about June 22, 2018, and continuing, Complainant’s requests to speak with the OIC were not granted. After its investigation into the complaint, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The Agency submitted motions for a decision without a hearing, and Complainant filed responses to both motions. The AJ subsequently issued a consolidated decision by summary judgment in favor of the Agency. The Agency issued its final order 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. 2 The Agency dismissed claims 7 and 14 for failure to state a claim. 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). On appeal, Complainant did not contest the Agency’s procedural dismissals of these claims; as such, we will not address them in the instant decision. 2020003523 4 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. On appeal, through his representative, Complainant argued that the AJ ignored evidence and that he established a prima facie case of discrimination. With his appeal, Complainant included his previously submitted responses to the Agency’s motions for summary judgment. However, Complainant did not identify any specific facts that were in dispute on appeal. Complainant also submitted a new Declaration with his appeal, arguing that the AJ erred when she did not take into account Agency manuals, regulations, and policies. Complainant also asserted that the AJ did not address the assault allegation in her decision. However, even crediting Complainant’s version of events, there is no evidence that the Agency’s actions were due to any of Complainant’s protected categories. Regarding the assault, the police report shows that Complainant stated that a verbal altercation with his supervisor occurred when she informed him that he was incorrectly placing mail into the mailboxes. Complainant’s supervisor then swung a mailbox door, which struck Complainant’s hand. Complainant reported that he did not suffer any injuries but wanted to press charges, and he signed a citizen’s arrest form. Report of Investigation (Agency Case No. 4F-945-0100-16) at 262. 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. 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. 2020003523 5 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. 2020003523 6 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 March 23, 2021 Date