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

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2020003626 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerald G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020003626 Hearing Nos. 520-2018-00186X, 520-2019-00222X Agency Nos. 1B-102-0060-16, 1B-102-00020-18 DECISION On May 19, 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 April 15, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Mail Handler at either the Agency's Morgan Processing Center facility or at its Ansonia Station in New York, New York. Complainant filed two separate EEO complaints alleging that the Agency discriminated against him on the bases of national origin (Indian), religion (Hindu), 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. 2020003626 2 Complaint 1 1B-102-0060-16 1. Between August 2016 and October 2016, Complainant was not selected for any of 26 positions for which he was an applicant;2 2. Between September 2016 and October 2016, Complainant was denied overtime opportunities; 3. From September 10, 2016 through September 16, 2016, Complainant was charged Leave without Pay/Absent without Official Leave, (LWOP/AWOL); 4. On December 15, 2016, Complainant's request to be detailed as an Acting Supervisor (204-B) was not granted; 5. Between August 2016 and October 2016, he was not selected for any of 7 positions he applied for; 6. From October 29, 2015, through August 5, 2016, Complainant was not paid Sunday premium pay; 7. Beginning on September 3, 2016, Complainant was not given orientation, safety training or a uniform voucher; 8. On September 3, 2016, Complainant was not notified of the “self plus one” health insurance coverage; 9. Since September 3, 2016, Complainant was not notified of the “self plus one” health insurance coverage; 10. On unspecified dates, his seniority date was changed;3 11. On October 8, 2016, Complainant was not allowed to work the Columbus Day holiday; 12. On September 21, 2016 and continuing his request to view his employee everything report has not been granted; 2 Claims 1 and 5 involve a breach of settlement agreement claim which also became the subject of a civil action filed by Complainant. In the AJ’s June 19, 2019 Decision and Order on Agency Partial Motion to Dismiss, claims 1 and 5 were dismissed in accordance with EEOC Regulation 29 C.F.R. § 1614.107 (a)(3). We find no error in this dismissal by the AJ. 3 The record indicates that Complainant withdrew claim 10. 2020003626 3 13. Beginning February 2015 through October 17, 2016 and continuing, Complainant’s pay adjustments have not been processed; 14. Since November 2016 and continuing, Complainant was not provided the same overtime opportunities as his co-workers; 15. On December 5, 2016, he was not paid out of schedule pay; 16. On January 11, 2017 and continuing, Complainant was harassed by his co-workers and management did not take action; 17. On unspecified dates, Complainant did not receive paid-for performance for pay periods one and two of 2017; 18. On unspecified dates, Complainant was harassed by management and not action was taken; 19. On May 22, 2017, Complainant was harassed by co-workers and no action was taken; 20. On June 3, 2017, he was given an investigative interview; and 21. On June 3, 2017 through June 7, 2017, he was put on an emergency placement. Complaint 2 - 1B-102-0020-18 1. On February 9, 2018, Complainant was charged with thirty minutes of AWOL; 2. In February and March 2018, Complainant’s managers harassed him; 3. On or about March 5, 2018, his request to work on the warmer side of a machine was denied and management would not accept his PS Form 1767; 4. On or about March 23, 2018, Complainant’s pay adjustment for two hours was not completed; 5. On or about May 28, 2018, Complainant's manager stated that she had been watching him for a few weeks to make him aware of future write-ups and mentioned his prior EEO activity; 6. On or about April 16, 2018, he became aware that a similarly situated supervisor was returned to work, but Complainant did not receive the same offer on July 26, 2016;4 4 Claim 6 was dismissed as untimely raised with an EEO Counselor. in accordance with EEOC Regulation 29 C.F.R. § 1614.107 (a)(2). The Agency's July 30, 2018 Partial Acceptance/Partial 2020003626 4 7. On an unspecified date, Complainant was not provided the opportunity for REDRESS;5 and 8. On April 7, 2018, he was the only employee not allowed wash-up time. Following an investigation of the two complaints 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 29, 2019 motion for a decision without a hearing and issued a decision without a hearing on March 30, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. This 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). 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. Dismissal indicates that Complainant failed to bring claim 6 to the attention of an EEO Counselor within 45 days pursuant to relevant EEO regulations. 5 The Agency's July 30, 2018 Partial Acceptance/Partial Dismissal indicates that claim 7 involves Complainant's dissatisfaction with the processing of a previously filed complaint. The claim was properly dismissed in accordance with EEOC Regulation 29 C.F.R. § 1614.107 (a)(8). 2020003626 5 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 Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision adopting the AJ’s finding of no discrimination. 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). 2020003626 6 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. 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 June 22, 2021 Date