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

Equal Employment Opportunity Commission

Feb 23, 2022

Appeal No. 2021001655 (E.E.O.C. Feb. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Miguel G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001655 Hearing No. 510-2018-00369X Agency Nos. 4G-330-0294-17 4G-330-0434-18 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 30, 2020 final action concerning an 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier Assistant (“CCA”) at the Agency’s Hialeah Bright Station in Hialeah, Florida. On August 1, 2019, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race/national origin (African American), sex (male), religion (Christian), color (Black), disability (sprained ankle), and in reprisal for prior EEO activity when:2 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. 2 The record reflects that the AJ consolidated Complainant’s two EEO complaints (identified as Agency Nos. 4G-330-0294-17 and 4G-330-0434-18) for processing. 2021001655 2 1. From March 8, 2017 and continuing, Complainant was not given a uniform allowance; 2. From March 8, 2017 and continuing, Complainant was forced to work at different stations; 3. On March 8, 2017, Complainant was not properly paid for overtime; 4. From March 8, 2017 and continuing, bids were hidden from him; 5. On May 11, 2017, he was issued a Letter of Warning (“LOW”); 6. On July 29, 2017, he was charged Leave Without Pay (“LWOP”); 7. On July 20, 2017 and July 24-28, 2017, his leave requests were denied; 8. On July 29, 2017 and August 25, 2017, his requests for upward mobility were not acknowledged; 9. On August 1, 2017, management attempted to issue him a LOW; 10. On September 3, 2017, Complainant’s supervisor subjected him to excessive scrutiny, and told him she does not think he is a good carrier and he should look for something else; 11. On September 30, 2017, he was not converted to full time; 12. On September 19, 2017 ad October 7, 2017, his requests to bid on a route were denied; 13. From August 2017 through October 2017, he was assigned to work on Sunday; 14. From September 19, 2017, management failed to inform Complainant of an extra tray of mail, criticizing him and threatening him; 15. Since September 30, 2017, he was assigned to a new route on a near daily basis; 16. On October 1 and 6, 2017, he was not provided with assistance, mocked, and dismissed; 17. On October 10, 2017, he was accused of failing to return keys; 18. On October 18, 2017, he was placed on the unauthorized overtime list; 19. In July 2017 and on August 25, 2017, his request for a supervisor detail was denied; 2021001655 3 20. On June 27, 2018 through November 13, 2018, and November 17 and 20, 2018, November 24, 2018, and December 6, 2018, he was not accommodated for his restrictions; 21. On November 20, 2018, his supervisor screamed at him and told the Postmaster she can’t stand working with Complainant; 22. On January 2, 2019, he became aware his absences from December 24, 2018 and December 27-28, 2018, were designated as unscheduled and he was not paid sick leave; and 23. On January 18, 2019, his medical documentation was scrutinized, and he was asked for documentation for December 1-7, 2018. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant did not submit a response. The AJ subsequently issued a decision by summary judgment in favor of the Agency. 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 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. 2021001655 4 In her decision, the AJ determined that none of the events alleged amounted to a hostile work environment. Complainant had not alleged anything that was abusive, severe, physically threatening, or unreasonably interfered with his work performance. The AJ found that, as a CCA, Complainant had a flexible schedule, location and work assignments. She also noted several of the allegations amount to minor inconveniences such as a delay in his uniform allowance. Complainant asserted that he was “stalked and harassed,” but what he described related to routine performance observations and instructions related to work. Complainant alleged a series of work-related disagreements such as assignments and location. The AJ noted that Complainant asserted a denial of “upward mobility,” but the AJ found it unclear what this term means. The AJ also noted that Complainant had made an unsuccessful request to work as a 204B to Employee T, but the AJ found that this employee is not the individual who handles such requests. Finally, the AJ properly found that Complainant was issued a Letter of Warning based on his “undisputed failure” to follow instructions. The AJ concluded that summary judgment in favor of the Agency was appropriate because viewing the evidence in the light most favorable to Complainant, the record indicates that he has offered no evidence to show that the Agency’s articulated reasons for its actions are a pretext for discrimination. 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 action 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). 2021001655 5 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. 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. 2021001655 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 February 23, 2022 Date