[Redacted], Ken C. 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022001894 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken C.1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2022001894 Hearing No. 410-2021-00515X Agency No. 4W-047-0002-21 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 5, 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 Mail Recovery Clerk, PS-06 at the Agency’s Mail Recovery Center in Atlanta, Georgia. On February 10, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment in reprisal for prior protected EEO activity when: 1. On September 30, 2020, management had his car towed from the parking lot; 2. On October 2, 2020, he was put on Emergency Placement in an Off-Duty Status, and subsequently, on November 10, 2020, he was issued a Notice of Proposed Removal; 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. 2 2022001894 3. On or about October 5, 2020, management posted his picture at entrances to the facility, advised other employees that he was dangerous, and advised anyone that felt unsafe with Complainant on the premises to write a statement. On September 29, 2020, Complainant was informed by his Supervisor (Supervisor) that he needed to move his parked vehicle because it was parked in a way that blocked postal trailers in the upper part of the parking lot and that the management needed the space to park the postal trailers. The next day, Complainant parked in the same manner as before. The Manager (Manager) and Supervisor found that Complainant’s vehicle was blocking the postal trailers and disrupting service. They worked with the Law Department, Postal Police, Labor Relations, and Human Resources to arrange a tow for Complainant’s vehicle because it was obstructing the trailers and disrupting mail operations. Postal Police Officers were present when the vehicle was towed as well as when Complainant became aware his vehicle had been towed. On October 1, 2020, Complainant was at the Mail Recovery Center and left in his rental vehicle to go get some medicine because he had a headache. When he returned, he drove into the employee parking lot and crashed into four parked cars that belonged to four supervisors, including the cars of S1 and S2. Complainant also wrecked his rental van. Complainant alleged he was in medical distress which caused him to black out while driving in the employee parking lot. Complainant was transported to the hospital with chest pains. An investigation was conducted, and the investigation found Complainant was perceived as a threat and in violation of the Agency Zero Tolerance Policy. The Headquarters Threat Assessment Team issued a memorandum on October 2, 2020, that assigned a Priority Risk Rating of “1- Extreme Risk” to the incident, due to a concern of escalating aggression and threatening behavior; accessibility to the facility/employees; and targeted violence. The memorandum included risk abatement recommendations, including an Inspection Service follow-up. The record contains an Assault and Threat Specialty Report by the Postal Inspection Service which details three relevant videos of the accident. The videos showed Complainant entered the Center gate without incident and drove straight to the front where the four supervisors’ cars were parked. He initially hit three cars, reversed the rental van, then accelerated forward pushing a truck into the fourth parked car. The report concluded that the videos appeared to confirm the act was deliberate and intentional, which was a violation of the Agency Zero Tolerance Policy. Complainant was placed on Emergency Placement in an Off-Duty Status effective October 2, 2020, because it was alleged that he “intentionally drove [his] vehicle into several parked vehicles in the parking” causing damage to the vehicles. At the direction of Inspection Services, S2 posted Complainant’s picture on all entrances to the Mail Recovery Center, which stated that Complainant was not permitted on Agency property at that time and to not allow him entry into the building. Additionally, it stated that if anybody had any questions, to contact the Postal Inspection Service or Postal Police. 3 2022001894 The Agency issued Complainant a Notice of Proposed Removal on November 19, 2020, for improper conduct and violation of the Zero Tolerance Policy. The Notice summarized the events described above and the results of an investigative interview that was conducted on October 26, 2020, where Complainant was presented with the opportunity to provide an explanation for his actions. Complainant was issued a Letter of Decision discharging Complainant from Agency employment effective December 10, 2020. Following an investigation, 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 timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. 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 retaliatory animus. Here, however, Complainant has failed to establish such a dispute. As described above, Agency officials articulated legitimate, non-retaliatory reasons for their actions. Complainant was instructed not to park in an area, but did so again the next day; therefore, officials had his vehicle towed. Complainant was placed on Emergency Placement in an Off-Duty Status and ultimately removed from the Agency because Agency officials found that he intentionally drove his vehicle into four vehicles parked at the Mail Recovery Center. Complainant was perceived as a threat and in violation of the Zero Tolerance policy; therefore, Agency management removed him from employment and posted his picture at entrances. Complainant failed to demonstrate that the Agency officials in this matter harbored retaliatory animus or that the legitimate, non-retaliatory reasons provided by the officials were pretext for reprisal. 4 2022001894 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. As a result, the Commission finds that Complainant was not subjected to reprisal or a retaliatory hostile work environment as alleged. 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 retaliated 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). 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. 5 2022001894 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 March 15, 2023 Date