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

Equal Employment Opportunity Commission

Mar 15, 2021

Appeal No. 2020003235 (E.E.O.C. Mar. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thurman L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003235 Hearing No. 510-2017-00483X Agency No. 4G-330-0049-17 DECISION 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 March 26, 2020, notice of final action 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 notice of final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS- 18, at the Key Largo Post Office in Key Largo, Florida. On January 17, 2017, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency discriminated against him on the bases of disability 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. 2020003235 2 1. On August 14, 2015, Complainant’s manager interfered with his attempt to manage one of his subordinate employees; 2. On August 14, 2015, Complainant’s manager disavowed receiving any medical documentation from him that stated Person A and Complainant should not be in the same room together; 3. On August 24, 2015, Manager 1 showed Complainant an award check that he had been awarded to receive and stated, “you are no longer getting this;” 4. On October 8, 2015, Complainant received information that his incentive award had been cancelled; 5. On January 1, 2016, Complainant was provided with additional duties of being the New Hire Coordinator; 6. On October 21, 2016, after receiving two spot awards, Manager 1 in a threatening aggressive manner hit Complainant’s back very hard and stated, “that was inappropriate, I will see you outside;” 7. On October 22, 2016, Complainant became aware that Manager 1 had stated to a coworker that he was upset that Complainant received a monetary award; 8. On October 24, 2016, Complainant’s manager informed him that the District Manager asked her what action she was going to take against Complainant for the comment Complainant made to Manager 1 when he stated, “thank you [Manager 1’s first name];” and 9. Since January 2017, Complainant has not been paid his full promotional increase of 10%. The Agency dismissed claims 1 - 5 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency accepted claims 6 - 9 for further processing. After its investigation on the accepted claims, 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 requested a hearing. In the Order on Initial Conference, the AJ found the Agency properly dismissed claims 1 - 5. Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant filed a response opposing a decision without a hearing. In his response, Complainant withdrew the claim concerning not being paid his full promotional increase. The Agency filed a reply to Complainant’s response. The AJ subsequently issued a decision by summary judgment in favor of the Agency finding no discrimination on the non-dismissed claims. 2020003235 3 The Agency issued its notice of final action fully implementing the AJ’s decision. The instant 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). 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. 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. To the extent that Complainant is challenging the dismissal of a portion of the complaint, we find that the AJ and Agency were correct in dismissing a portion of the complaint. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing 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 2020003235 4 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). 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. 2020003235 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 March 15, 2021 Date