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

Equal Employment Opportunity Commission

Mar 18, 2021

Appeal No. 2020000757 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ervin P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000757 Hearing No. 460-2019-00026X Agency No. 4G-770-0041-18 DECISION On October 2, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 29, 2019 final action concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Customer Service, at the Agency’s Humble-Kingwood Station in Kingwood, Texas. On March 17, 2018, Complainant filed a formal complaint claiming that the Agency subjected him to discriminatory harassment/hostile work environment based on race (Caucasian), sex (male), disability,2 age (over 40), and in reprisal for prior EEO activity when:3 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 2020000757 1. beginning in or about October 2017 and continuing, he was held to a higher standard of work performance; 2. on unspecified date(s) during summer 2017, he was denied limited duty work accommodations; 3. in November 2017, he was charged Leave Without Pay; 4. beginning in November 2017 and continuing, he was not provided a key, training on new programs, refresher training, or contact phone numbers for employees; 5. beginning in or about November 2017, he was continually threatened with discipline and given numerous investigative interviews; 6. during November and December 2017 (Pay Periods 23 and 24), he was not properly paid pursuant to his limited duty modified assignment, and on several Saturdays, his work hours were reduced; 7. on December 5, 2017, he was not scheduled to work; 8. beginning on or about January 2, 2018 and continuing, he was required to work outside of his medical restrictions, work seven (7) hours without break or lunch, and was required to work alone without a PM Supervisor or PM Clerk; 9. on January 22, 2018, he was accused of leaving the building unlocked and making errors on Form 4240; 10. on January 27, 2018, he was not provided a PM Clerk and his staffing consisted of only two (2) limited duty Rural Carriers; 11. on January 29, 2018, he did not receive proper or timely notification regarding his non-scheduled day or training requirement; 12. on January 29, 2018, he was required to work outside his medical restrictions and work without receiving pay; 13. on or about February 20, 2018, his work scheduled was changed; 2 Complainant identified his disability as right foot. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. 3 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-26. 3 2020000757 14. on unspecified date(s), he was given a work schedule which minimized his contact with customers which contradicts his job position; 15. on March 21, 2018, his request to cancel his leave for March 12, 2018, was not granted; 16. on March 17, 2018, the manager continued to work him without posting a work schedule; 17. on or about March 30, 2018 and April 2, 2018, he was required to perform other supervisor’s duties or responsibilities and held to a higher standard; 18. on April 3, 2018, he was required to attend a teleconference in which the manager made false statements and inappropriate remarks; 19. on or about April 13 and 18, 2018, his scheduled days off were changed; 20. on April 18, 2018, the manager accused him of not completing the union’s request for information; 21. on May 1, 2018, the manager did not process the safety report he give him which made it appear he was not completing the assignment; 22. on or about May 16, 2018, he was required to perform clerk duties; 23. on May 16, 2018, the manager made inappropriate comments during a meeting held in front of his coworkers; 24. beginning on or about May 19, 2018, he was given instructions to communicate with the manager by telephone; 25. on May 20, 2018, the manager called him on his personal telephone and gave him instructions to report to work at noon; and 26. on May 20 and 21, 2018, the door was locked and he was not provided with a key or an apology. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Thereafter, the AJ conducted a video-teleconference (VTC) hearing on August 15, 2019. Following the hearing at which nine witnesses testified, the AJ issued a decision finding no discrimination or harassment was proven. 4 2020000757 The Agency issued its final action adopting the AJ’s finding of no discrimination. The instant appeal followed. 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. Accordingly, we AFFIRM the AJ’s decision without a hearing, 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. 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. 5 2020000757 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. 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. 6 2020000757 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 18, 2021 Date