[Redacted], Owen N., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 14, 2021

Appeal No. 2020001589 (E.E.O.C. Sep. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Owen N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020001589 Hearing No. 570-2017-00891X Agency No. 4E-980-0047-16 DECISION On December 5, 2019, 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 November 7, 2019 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-24, at the Agency’s Kent Main Post Office (PO) in Kent, Washington. The Postal Operations Manager was Complainant’s Manager (M1) and M1’s immediate supervisor was the District Manager (DM). 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 2020001589 On June 29, 2016 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African American), color (Black), disability, and reprisal (current EEO activity) when: 1. On unspecified dates, he did not receive a Pay for Performance increase for Fiscal Year 2015 in part, because management assigned 15 CCAs to other post offices and directed other personnel changes; 2. On or around March 22, 2016, he was reassigned from his Postmaster position; 3. On or around March 30, 2016, he was issued a Letter of Warning (LOW) in lieu of a fourteen (14) day suspension; 4. On an unspecified date, he was denied a lateral transfer as Postmaster in Renton, Washington; 5. On an unspecified date, management discussed his medical condition with other personnel; 6. On [June] 1, 2016, he was put on Emergency Placement in Off-Duty Status Administrative Leave; 7. On or around July 19, 2016, he was notified by management via telephone and text that upon his return to work, he was to report to the Puyallup Post Office; 8. Since March 26, 2016, and continuing, he has been talked down to, bullied, humiliated, threatened and degraded; and 9. On dates (to be specified) management ignored his medical documentation/restrictions. At the conclusion of the investigation, 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a summary judgment decision on September 30, 2019, finding that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. The Agency issued a final order fully adopting the AJ’s decision. The instant appeal followed. 3 2020001589 CONTENTIONS ON APPEAL On appeal Complainant, through his representative, argues the AJ erroneously issued a decision without a hearing and that Complainant was denied due process when the AJ ruled summary judgment was appropriate because both parties had engaged in discovery, even though Complainant was never granted the right to engage in discovery. Complainant also argues the AJ erred when the AJ included a footnote stating she would not read Complainant’s Response to the AJ’s Proposed Summary Judgement in its entirety in response to the Agency’s allegations that Complainant had used a smaller font to get his Response within the 15-page limit. Complainant timely filed a reply to the Agency’s allegations with supporting documents and evidence showing his Response fully complied with the AJ’s orders and was filed using 12-point font. Additionally, Complainant argues there are numerous genuinely disputed material facts and that construing facts in the light most favorable to Complainant, indicates that a discriminatory intent more likely than not motivated the Agency. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. We carefully reviewed the record and find that it is not adequately developed. Complainant identified and disputed all of the facts that the AJ identified as undisputed, referencing evidence in the record of investigation in his supplemental declaration and giving in-depth explanations as to why the facts were disputed. For example, Complainant initially believed he did not receive a Pay for Performance (PEP) increase for Fiscal Year (FY) 2015, but later learned in April 2016 that the Kent PO received a 4 percent pay increase for FY 2015 in January 2016 under PEP instead of 8 percent. Complainant believed this was due to management having assigned 15 City Carrier Assistants (CCAs) from the Kent PO to other post offices and other personnel changes, impacting the data on the Kent PO and his performance making him look bad. Complainant tried to get the 15 CCAs officially transferred in the Agency’s system to the Redmond PO so that the Kent PO would not have to absorb their work hours, affecting the Kent PO’s performance data. 4 2020001589 M1 stated that Complainant lacked administrative ability to officially transfer the employees to other offices, and the Seattle District sent an Analyst to Kent Post Office to help Complainant in transferring employees. Complainant disputed both these facts and alleged that M1 refused to officially accept the transfers due to continued discrimination. Complainant further alleged that M1 used a slur at him and a supervisor and said that “you are going to make me commit Black- on-Black crime.” M1 denied making the statement, but the other supervisor corroborated the comments. The Bellevue Postmaster said that in a phone conversation with M1, M1 suggested Complainant should request a lateral transfer to the vacant Renton PO Postmaster position. The Bellevue Postmaster informed Complainant of this and, despite suggesting it, M1 denied Complainant’s voluntary lateral transfer request. M1 affirmed that he reassigned Complainant from his Postmaster position and denied the lateral transfer request because of poor performance. In addition, Complainant received a Letter of Warning (LOW) in Lieu of 14-Day Suspension for Unsatisfactory Performance from M1 because the Kent PO had two zero bundles that occurred on February 8 and 9, 2016. An investigation identified several administrative failures created an environment where a zero-bundle failure could occur. Complainant challenged these reasons stating that since March 26, 2014, the Seattle District had 14 zero bundle failures. Complainant stated six were under M1, including the Seattle PO, which had two zero bundles within four months. M1’s justification for his actions were that Complainant was the only PO with two zero bundle failures. Additionally, Complainant argues that a report found the two zero bundles in Kent were the Seattle Distribution Plant’s fault, which failed to process all the mail on two nights in a row, causing the Kent PO mail not to be fully processed. Complainant argued that M1 did not remove the Issaquah Postmaster (Race, white) from her position or place her on developmental training, even though the Issaquah PO was a Vital Few Office for poor performance. Complainant stated M1 approved the Issaquah PO for a lateral transfer for the position of Kirkland PO Postmaster, and that she was not disciplined or removed when the Kirkland PO was found to have delayed Priority Mail and Second-Class Mail. Complainant identified several specific POs in Area 1 under M1 with performance below the Kent PO, stating M1 did not remove those Postmasters for poor performance. Complainant contacted the EEO office on March 24, 2016, and on June 1, 2016, during a REDRESS mediation, Complainant was notified that he was placed on Emergency Placement in Off-Duty Status Administrative Leave. Complainant alleged this occurred after he refused to accept an offer of resigning or demotion. Management stated Complainant was placed on Emergency Placement in Off-Duty Status Administrative Leave while an Office of Inspector General (OIG) investigation was conducted in Kent regarding the Kent PO. Complainant questioned why management waited until the end of the EEO meeting to place him off work if he had done something wrong. Further, M1 stated he had not had any communication with Complainant since June 1, 2016, when he was sent home on emergency placement. 5 2020001589 On the Activity Prescription Form 11-2014 from Complainant’s doctor with information from a July 22, 2016, visit, under ‘Restrictions/Instructions’ Complainant’s doctor wrote: “there is to be no further contact by [M1] with patient, since [M1] is the supervisor responsible for patient’s current situational anxiety and a threatening call to patient from [M1] has been independently witnessed.” On August 16, 2016, M1 directed Complainant via a letter mailed to his home, to report to the City of Seattle upon his return for his assignment. In addition, Complainant alleged that M1 called him and texted him that he would be reporting to the Puyallup Post Office when he returned to work. Complainant contended that there was no reason for him to contact him in violation of his medical documentation and that there was no performance reason to move him. Additionally, the Complainant identified specific deficient or missing record evidence that he should be able to discover. For example, documents of comparable Postmasters, including their pay for performance increases and their PO performance documents, performance evaluation documents for raises received in January 2016; any letters of warnings issued relating to accountability, and documents related to lateral transfer requests; emails and background documents related to why he was placed on emergency placement and when the decision was made and by whom; and documents demonstrating M1s inappropriate contact while Complainant was out on medical leave. We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have “a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.” See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar.26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are simply too many unresolved issues which require further development of the record and an assessment as to the credibility of M1, other witnesses, and Complainant himself. Therefore, judgment as a matter of law for the Agency should not have been granted. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND the complaint to the Agency for further processing, in accordance with this decision and the ORDER herein. ORDER The Agency shall submit to the EEOC Hearings Unit of the EEOC’s Washington Field Office a renewed request for a hearing on behalf of Complainant, as well as a copy of the complaint file and this appellate decision, within fifteen (15) calendar days of the date this decision becomes 6 2020001589 final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 7 2020001589 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). 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). 8 2020001589 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 September 14, 2021 Date