[Redacted], Stefan H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Apr 7, 2022

Appeal No. 2021002627 (E.E.O.C. Apr. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stefan H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002627 Hearing No. 480-2020-00544X Agency No. 4F-900-0030-20 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 March 26, 2021, 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 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 Wagner Station in Los Angeles, California. On February 7, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when, on November 4, 2019, Complainant was sent home early and, subsequently, issued a 14-Day Suspension on November 21, 2019. 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. 2021002627 2 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to 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 discrimination based on reprisal. Assuming for the sake of argument that Complainant could establish a prima facie case of retaliation, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ determined that Complainant was disciplined for, as stated in the Notice of Suspension, “Unacceptable Conduct from Postal Employee” and “Failure to Follow Instruction” when he took a photograph of Manager Customer Services (MCS), EAS-24, without permission and did not leave the area when MCS first instructed him to do so, which Complainant does not dispute. Complainant was then told to clock out of work at that time and did so. According to management, Complainant’s discipline stemmed from the fact that the Agency handbook prohibits the use of cellular phone cameras by Agency employees to photograph various facility areas, including workroom floors, and also that he failed to follow instructions when he was originally told to leave the workroom floor. Complainant filed a union grievance regarding his suspension, and the Dispute Resolution Team that resolved the grievance decided to reduce the 14-Day Suspension to a Letter of Warning that would remain in Complainant’s file for nine months. Complainant says he took the photograph because a non-Agency person, a representative from a third-party vendor, was giving a presentation during a staff meeting. In Complainant’s view, this was against Agency policy because MCS had improperly allowed the non-Agency person to be on the workroom floor without proper security clearance. Complainant argues that he took the photograph in order to document the “criminal actions” of the Agency. The AJ found, however, that even if Complainant had “taken the picture in an effort to be a whistleblower regarding the outside vendor, . . . there is nothing to connect the effort to any EEO-related matter. Thus, even if management was motivated by Complainant’s attempts to obtain ‘evidence of misconduct and malfeasance,’ that motive does not prove an EEO-related claim.” The AJ further determined that “Complainant alleges no reprisal-based comments against the responsible officials . . . [and] presents no comparative coworkers who were not discipline[d] despite similar conduct.” In sum, the AJ found that Complainant could not prove the Agency’s reasons for disciplining him were pretextual, concluding that “Complainant might have felt that it was unfair to discipline him for his attempting to expose management’s alleged misconduct, but that does not prove an EEO- related motive. . . . The mere fact that these decisions occurred after Complainant had engaged in some other EEO-related activity, without more, is insufficient to ultimately prove that the actions were motivated by reprisal.” 2021002627 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder could find in favor of the nonmoving 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his 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. 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. 2021002627 4 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). 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. 2021002627 5 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 April 7, 2022 Date