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

Equal Employment Opportunity Commission

May 12, 2022

Appeal No. 2020005213 (E.E.O.C. May. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020005213 Hearing No. 520-2020-00053X Agency No. 4B-020-0017-19 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 20, 2020, 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. At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Brockton Post Office in Brockton, Massachusetts. On March 30, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of race (Mixed Race/Hispanic), national origin (Puerto Rican), and religion (Pentecostal Christian) in connection with 12 events occurring between November 2018 and July 2019. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 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. 2020005213 2 The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ determined that there were no genuine disputes of material facts and that summary judgment was appropriate. The AJ then addressed each of the specific allegations of harassment. For example, Complainant alleged that his managers “mocked and made fun of his religion,” but the AJ found that Complainant offered no evidence that management officials mocked his religion. In addition, while Complainant asserted that they discussed his family photos, the management officials explained that they discussed the photos because they showed Complainant engaging in activities while he claimed sick leave and that he was unable to work. Therefore, the photos were evidence of Complainant’s misconduct. While Complainant claimed that a supervisor called him a “fucking Puerto Rican” and made a hand gesture with his middle finger, the supervisor and a witness (W1) denied that the supervisor made the comment.2 The supervisor admitted to making the hand gesture, but the AJ determined that this isolated incident alone did not substantiate a hostile work environment. Complainant also stated that another witness (W2) informed him that management did not like them because they are Hispanic. However, the AJ determined there was no evidence from W2, or anyone else, that the supervisor stated that he did not like Complainant because he is Hispanic. Complainant stated that management officials would not accept his medical documentation because there was no medical reason provided as to why he needed to arrive at work at a different time than his current schedule, but the AJ determined that a disagreement over medical documentation is a routine work matter that is not evidence of discriminatory harassment. The AJ also found that there was no evidence to connect the Notice of Proposed Removal to any of Complainant’s protected categories. For the Emergency Placement and Notice of Removal, the AJ determined that an arbitrator found that there was just cause for both, and Complainant was collaterally estopped from relitigating these issues because he already had an opportunity to present his case that these actions were discriminatory. In response to Complainant’s contention that the Agency conducted a “lazy” investigation, the AJ stated that Complainant cannot blame the EEO Investigator for not trying to find additional witnesses to remember basic facts and details that he himself was apparently unable to recall, such as the approximate date when his religion was mocked or how his religion was mocked at all. Further, the AJ noted that Complainant had the opportunity to request discovery if he felt that there was missing information, but Complainant failed to propose a discovery plan or submit a Pre-Conference Statement. 2 W1 stated that Complainant asked the supervisor how he had a son who played professional basketball, and the supervisor raised his middle finger in a half-hearted manner. W1 added that the supervisor apologized, and that Complainant did not appear to be upset. W1 also stated that it was a lie that she witnessed the supervisor calling Complainant a “fucking Puerto Rican.” ROI at 338. 2020005213 3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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. (Aug. 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 has failed to establish such a dispute. Through his attorney, Complainant argues that, in his response to the Agency’s motion for summary judgment, he named three witnesses to support his hostile work environment claim, but he was never afforded the opportunity for discovery. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). In this case, the AJ noted that she informed Complainant in her March 2, 2020, Instructions to Prepare for Upcoming Conference: Order to File Pre-Conference Statement, that he was required to file a discovery plan in his Pre-Conference Statement seven days prior to the Conference; and that if he failed to propose a discovery plan, he could be denied discovery. AJ Decision at 9. Complainant does not dispute that he failed to submit a discovery plan. Complainant asserts that he failed to do so because he was pro se and requested a postponement of the Initial Conference. In the Order Following Telephonic Initial Teleconference, the AJ denied Complainant’s request to postpone the Initial Conference because he did not present a good case for postponement. 2020005213 4 Specifically, Complainant had approximately one and a half years to find counsel and a last- minute postponement to obtain counsel was not appropriate. Complainant presented no arguments or evidence to show that the AJ abused her discretion when she denied Complainant’s request to postpone the Initial Conference and imposed a deadline for Complainant’s proposed discovery plan. Further, the Commission’s regulations state that a complainant is responsible for proceeding with the complaint whether or not he has designated a representative. 29 C.F.R. § 1614.605(e). Accordingly, we find that the AJ properly denied Complainant’s untimely discovery request. Complainant also argues that three management officials may not have been honest based on alleged inconsistencies in their statements, when they stated that there was “no medical basis” for his requested duty hours, but his medical documents revealed that Complainant required the hours to maintain his physical therapy appointments. A review of Complainant’s medical documentation reveals that Complainant needed to work a schedule from 7:30 a.m. to 4:00 p.m. to attend physical therapy appointments in the afternoon. ROI at 180-1. However, we agree that there was “no medical basis” because the documents do not explain how Complainant’s requested hours were due to a medical condition or why Complainant could not attend his physical therapy sessions outside of his regular tour of duty. As such, we find that there is no need for credibility assessments of the management officials. Regarding the Emergency Placement and Notice of Removal, Complainant states that he “only relitigates arguments for Special Consideration” to allow for an exception of collateral estoppel. However, Complainant provided no specific arguments to challenge the AJ’s determination that he already had an opportunity to present his case that these actions were discriminatory. 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 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. 2020005213 5 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. 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. 2020005213 6 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 May 12, 2022 Date