[Redacted], Jordon S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Nov 14, 2022

Appeal No. 2022001481 (E.E.O.C. Nov. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jordon S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2022001481 Hearing No. 550-2020-00216X Agency No. 4F-945-0073-19 DECISION On January 22, 2022, 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 December 22, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During his probationary period that began on March 18, 2019, Complainant worked as a City Carrier Assistant at the Agency’s Destination Delivery Unit (DDU) Carrier Annex in Berkeley, California. Complainant completed on-the-job training from April 9 - 13, 2019. On April 30, 2019, Complainant was expected to complete his mounted delivery route at approximately 5:00 PM. After 8:00 PM, Complainant returned to the DDU Carrier Annex parking lot driving a postal vehicle. The postal vehicle that Complainant operated was witnessed moving slowly while hitting the parking lot gate and a wall of the DDU Carrier Annex. 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 2022001481 The vehicle then hit Complainant’s privately-owned vehicle that was parked there. After exiting the postal vehicle, Complainant collapsed in the facility’s parking lot. The Acting Supervisor, Customer Services (A/SCS) called 911, and first responders resuscitated Complainant. On May 1, 2019, the Manager Customer Service (MCS), directed Complainant to return to the DDU Carrier Annex for an investigative interview. Complainant did not do so. On May 2, 2019, the MCS, again, directed Complainant to come to the DDU Carrier Annex. Complainant did not do so. Later in May 2019, Complainant arrived at the DDU Carrier Annex and answered a few questions from management but then expressly refused the Agency’s request that he submit a written statement concerning the accident. On May 29, 2019, the Agency sent Complainant a letter to his address of record demanding that he immediately contact his supervisor to discuss his duty status. The Agency stated Complainant had until 5 days after of receipt of the letter to provide evidence of his inability to report for duty as scheduled. Complainant failed to respond. On June 25, 2019, the Agency officially separated Complainant for its reasons as previously stated in addition to another charge of being absent without leave (AWOL). On September 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (low blood sugar and diabetes) when: On May 9, 2019, Complainant was terminated during his probationary period. After an 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 timely requested a hearing. The assigned AJ issued a notice of intent to render a decision without a hearing. The AJ provided both parties fifteen calendar days to respond in writing to the AJ’s notice. Neither party responded. Thereafter, the AJ issued a summary judgment decision concluding no discrimination was established. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant argues the Agency used his diabetic condition and the medical emergency he had suffered on April 30, 2019, to improperly remove from his position. Complainant blamed the accident on Agency management giving instructions that he found vague. Complainant argued that the Agency should not have terminated him because his performance had been otherwise satisfactory. 3 2022001481 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where an AJ determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the AJ must believe the non- moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable AJ could find in favor for the non- moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 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 fact-finder could not find for Complainant. To prevail in his claim that he was subjected to discrimination based on his diabetic low blood sugar condition, Complainant must satisfy the three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The second burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Here, assuming arguendo that Complainant established his prima facie case based on disability, Complainant failed to present evidence to rebut the Agency’s proffered legitimate, nondiscriminatory reasons for its actions. To the extent that Complainant disclosed his medical condition to the Agency after he was hired, he never requested a reasonable accommodation for it. 4 2022001481 Even presuming that the April 30, 2019 postal vehicle accident was attributable to Complainant’s failure to manage his low blood sugar, we note that Agency officials denied that Complainant’s disability factored into the Agency’s probationary termination decision. We observed, as did the AJ, that A/SCS and MCS had been unaware of Complainant’s low blood sugar issue. Complainant has stated, for the first time on appeal, that unspecified “inappropriate comments” had been made about him after the April 30, 2019, postal vehicle accident. Complainant stated that such comments should have factored into the AJ’s decision or the Agency’s final action. Complainant’s appellate argument was vague and unpersuasive. Indeed, the record revealed that it was Complainant’s conduct following the accident that chiefly motivated the Agency to terminate his probationary employment. When the MCS and A/SCS contacted Complainant so that Complainant could participate in the postal vehicle accident investigation, Complainant declined to return to the workplace for days, despite assuring Agency officials that he would do so. Complainant eventually did come back to the DDU Carrier Annex. Once there, however, he denied management’s request for a written statement about the accident. Following the initial notice of termination, Complainant had an opportunity to discuss his employment status with his supervision, but he chose not to respond. Beyond Complainant’s subjective beliefs, he has not provided evidence that the Agency’s articulated reasons for its adverse action against him were pretext for animus toward his disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order 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 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 2022001481 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 2022001481 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 14, 2022 Date