[Redacted], Courtney M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022005000 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Courtney M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2022005000 Hearing No. 520-2022-00226X Agency No. 4B-020-0093-21 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 August 31, 2022 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Technician at the Agency’s Providence Post Office in Providence, Rhode Island. On September 20, 2021, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race (African American) and sex (male), and in reprisal for prior protected EEO activity, when: 1. on May 4, 2021, Complainant was assaulted by a Coworker and placed on Emergency Placement, and subsequently issued a 14-day suspension; and 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. 2022005000 2 2. from February 24, 2021, through March 10, 2021, Complainant was questioned by management and assigned mundane tasks. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely 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 on August 17, 2022. For claim 1, the AJ noted that the Coworker entered the Supervisor’s office to discuss an altercation she had with Complainant. When Complainant attempted to enter the office, the Coworker prevented his entry. The Supervisor disciplined both Complainant and the Coworker, but Complainant received more severe discipline based on his disciplinary history.2 While Complainant asserted that a White coworker was treated more favorably, he did not show that this comparator was similarly situated, and this discipline concerned the incident with the Coworker. Regarding claim 2, the AJ noted that, when the Supervisor attempted to discuss errors in Complainant’s work, he accused her of harassment. The only “mundane” assignment identified was paper shredding, and the AJ determined that it was undisputed that two White coworkers and the Supervisor also performed this task. The AJ further found that Complainant’s overall claim of harassment represented ordinary workplace tribulations and the exercise of managerial discretion, which do not rise to the level of harassment. In addition, Complainant did not demonstrate a connection between the incidents and his protected classes. For Complainant’s reprisal claim, the AJ determined that a reprisal motive could not be inferred because Complainant’s protected EEO activity is the instant case, and the incidents at issue occurred prior to the filing of this case. The AJ concluded by granting summary judgment in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed, and Complainant submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. 2 Complainant and the Coworker were both immediately placed on Emergency Placement. Complainant’s disciplinary history included two Letters of Warning and two 7-day suspensions. The Coworker had no prior discipline and received a Letter of Warning for the incident. ROI at 176-7, 146, 170, 208, 212. 2022005000 3 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 he 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 did not provide any arguments regarding the merits of his claims, and he has failed to establish such a dispute. On appeal, Complainant argues a “faulty process” in the examination of the information in his case, but he offers no examples or explanations of a “faulty process.” In addition, Complainant asserts that there “may have been some bias by the AJ.” For example, Complainant avers that the AJ expressed no interest in hearing his case and gave “legal direction and advice to an opposing member” when instructing the Agency’s representative to file a motion for summary judgment. Complainant also contends that the AJ exhibited an “uncanny” demeanor when stating, “I don’t want to hear anything positive,” when Complainant wished everyone a nice day at the end of their conference. Complainant must make a substantial showing of personal bias by the AJ in order to prevail on his contention that the AJ displayed bias. Such bias must be shown to have prejudiced him in this matter. Complainant must establish that the alleged bias demonstrated, so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that he did not receive a fair and impartial hearing. See Smith v. Dep’t of the Army, EEOC Appeal No. 01880866, (May 11, 1988) (citing, Roberts v. Morton, 549 F.2d 158 (10th Cir), cert. denied); and Roberts v. Andrus, 434 U.S. 834 (1977). In this case, there is no evidence that the AJ was biased in favor of the Agency such that Complainant did not receive a fair evaluation of his case. We find that Complainant’s bare assertions are not sufficient to establish a substantial showing of personal bias. 2022005000 4 We further find that the AJ properly analyzed the claims and fairly concluded that Complainant did not prove discrimination or harassment. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. 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. 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). 2022005000 5 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 January 31, 2023 Date