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

Equal Employment Opportunity Commission

Nov 10, 2022

Appeal No. 2022000286 (E.E.O.C. Nov. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claude S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000286 Hearing No. 520-2016-00450X Agency No. 4B-070-0201-15 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 September 22, 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. 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/A, at the Agency’s New Brunswick Annex in New Brunswick, New Jersey. On December 3, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the basis of religion (Orthodox Jewish) 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. 2022000286 2 1. Beginning on May 24, 2015 and ongoing, his requests for religious accommodation have been denied; 2. On June 16, 2015, he received a Seven-Day Suspension; and 3. On September 15, 2015, he received a Notice of Removal.2 Complainant informed the Agency, when he was first hired, that he is a practicing Orthodox Jew. Complainant claimed that in September 2014, he provided Agency officials with a Hebrew- English calendar identifying the Jewish holidays for which he would need a religious accommodation. Management officials denied receiving a calendar with any dates for which Complainant needed accommodation beyond December 2014. Complainant was scheduled to work on Sunday, May 24, 2015, and Memorial Day, May 25, 2015, to deliver Amazon packages. Complainant, however, did not report to work. Complainant did not inform management that he would not be in attendance in advance. Complainant claimed that he had previously informed management of the days he needed to not work, including the holiday of Shavuot on May 24 and 25, 2015. Management officials denied that Complainant informed them that he needed a religious accommodation on those dates and noted that the schedule was posted the Tuesday before and Complainant failed to properly notify officials. Complainant was subsequently charged as absent without leave (AWOL). Following a pre- disciplinary interview, Complainant was issued a Seven-Day Suspension for AWOL. The suspension notice noted that Complainant’s prior disciplinary history was considered. On June 17, 2015, Complainant provided a letter from his Rabbi detailing the names and dates of the Jewish holidays that required Complainant to miss work. Complainant was provided accommodation to observe other Jewish holidays in September 2015. Complainant filed a grievance regarding the suspension, but it was upheld as issued for just cause. The Jewish Sabbath begins at sunset on the Friday evening before. Complainant contended that his religious beliefs required that he leave work by sundown. The Agency allowed Complainant to take off practically every Saturday as an accommodation for Complainant’s religious observations. Management noted that doing so often resulted in violations of the collective bargaining agreement. Complainant admitted that he received nearly a year of accommodation. However, on September 11, 2015, Complainant called into the office around 4:00 p.m., to report that he had to be off the clock by 4:55 p.m., which was two hours before sunset. Complainant was instructed to continue delivering his route, but instead, Complainant returned to the office around 5:00 p.m. As a result, two other employees had to finish Complainant’s route and incurred overtime. The record reveals that sunset was around 7:00 p.m. on that day. 2 The Agency accepted the suspension claim as part of Complainant’s hostile work environment claim, but explained in a January 2016 letter to Complainant and his counsel that any discrete claims that occurred prior to July 10, 2015, were untimely raised with an EEO Counselor. The AJ reiterated this in a September 2017 order and in her summary judgment decision. Accordingly, any claims that occurred prior to July 10, 2015, will be considered as background evidence in support of Complainant’s hostile work environment and denial of religious accommodation claims. 2022000286 3 On September 25, 2015, management issued Complainant a Notice of Removal for failure to follow instructions. The notice stated that Complainant failed to follow managerial instructions to finish delivering the mail and that Complainant failed to provide management with sufficient notice of when he needed to be off the clock. The notice cited Complainant’s past disciplinary actions. The Notice of Removal was later rescinded on November 6, 2015, as a result of a grievance settlement and Complainant was made whole and recovered any lost wages. 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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case issued a summary judgment decision in favor of the Agency. In the decision, the AJ found that the record supported that the Agency provided Complainant with religious accommodation for his religious beliefs. The AJ noted that it was undisputed the Agency allowed Complainant to take off practically every Saturday even in contravention of policies regarding seniority and leave. On one occasion, Complainant failed to give timely notice to the Agency of when he needed accommodation. The Jewish Sabbath begins at sundown Friday evening, but when sunset occurs changes week to week and season to season. It was Complainant’s responsibility to notify management in a timely manner so that they would have sufficient coverage for his route. On September 11, 2015, Complainant did not provide specific information until about an hour before he abandoned his route leaving management without someone available in such a short period of time to finish his route. Complainant refused managements instruction to finish his route and left hours before sundown. As a result, management had to assign Complainant’s deliveries at the last minute and incurred overtime. Additionally, the AJ determined that Complainant was not subjected to discrimination or a hostile work environment. Complainant alleged no facts demonstrating that the Agency’s reasons for its actions were based on discriminatory animus. The AJ found that the facts showed that Complainant was consistently accommodated except for when he failed to timely notify his managers. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ ignored the facts and improperly analyzed his complaint. He asserts that the record shows that his supervisor created an environment where it was impossible for him to do his job and maintains that no one practicing Judaism could have done the job. Accordingly, Complainant requests that the Commission reverse the final order. 2022000286 4 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 subjected to discrimination or reprisal as alleged. Accordingly, we AFFIRM the Agency’s final order 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. 2022000286 5 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. 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. 2022000286 6 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 November 10, 2022 Date