[Redacted], Norris C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 28, 2021Appeal No. 2021001755 (E.E.O.C. Jul. 28, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Norris C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001755 Hearing No. 520-2019-00410X Agency No. 4B-117-0036-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 4, 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. 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 a City Carrier, Q-01, at the Agency’s Hempstead Post Office in Hempstead, New York. Complainant filed an EEO complaint alleging that he was discriminatorily harassed based on race (African-American) and reprisal for prior protected EEO activity under Title VII when: 1. On January 16, 2018, Complainant was put on Emergency Placement in a non- pay status; 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. 2021001755 2 2. On or about March 27, 2018, Complainant was issued a Decision Letter, which modified the Notice of Proposed Removal issued on March 2, 2018 to a 7-Day Suspension; 3. On June 22, 2018, and other dates, management conducted a count on Complainant’s route, but failed to provide him with the results; 4. On July 26, 2018, Complainant was notified that his start time would be changed from 7:30 AM to 8:00 AM, effective August 9, 2018; 5. On unspecified continuing dates, management stood behind Complainant and took notes, followed him around the office, and spoke to him in a disrespectful manner; and 6. On unspecific dates, other carriers were assigned to case Complainant’s mail, thereby possibly denying him overtime. 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 requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order fully implementing the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The AJ found that taking the facts as presented in the report of investigation and, viewing the evidence in the light most favorable to Complainant, he failed to create a genuine issue of material fact to establish discriminatory harassment based on race or reprisal for prior EEO activity. Complainant, the AJ noted, failed to show the actions were severe or pervasive enough to establish a hostile work environment, or that they were motivated by unlawful considerations. The Agency articulated legitimate, nondiscriminatory reasons for the discrete employment actions that are part of Claims 1, 2, 4, and 6-namely, that Complainant was placed on emergency non-pay status, that he was issued a 7-Day Suspension, that his start time was changed without notice, and that he was prevented from receiving overtime. Regarding Claim 1, Complainant’s emergency non-pay status occurred after he left his postal vehicle unattended while it was running. Regarding Claim 2, the conversion of the Notice of Removal to a 7-Day Suspension was done based on a settlement that Complainant and his union representative made with management, therefore resolving this issue in the grievance process. Regarding Claims 4 and 6, management contended that both actions-changing Complainant’s start time and assigning other carriers to case his mail-were based on his excessive use of overtime. The record shows that the Agency is entitled to limit carriers’ overtime by having other carriers- who have finished their route early and have extra time-assist with their mail. 2021001755 3 The change in Complainant’s start time was made to give management the flexibility to assign other carriers to case Complainant’s mail, as he consistently went over his projected delivery time. As to Claims 3 and 5, the Complainant could not produce specific facts to corroborate his claims of harassment and instead relied on vague and conclusory statements. Specifically, the record contained only conclusory testimony that the actions had happened and that there was no evidence that the alleged behavior of management persisted over time. Based on the above, the AJ concluded that Complainant could not succeed on his complaint of discriminatory harassment. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant appears to raise a new claim on appeal, alleging that the postmaster and other carriers falsely accused him of threatening a female coworker. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, we will not address this new claim in the instant decision. Should he wish to pursue this new claim, Complainant is advised to contact an EEO Counselor to initiate the administrative process. The Commission’s regulations allow an AJ to grant summary judgment when 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 implementing 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 AJ’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. 2021001755 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the 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 Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding 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. 2021001755 5 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. 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 July 28, 2021 Date Copy with citationCopy as parenthetical citation