[Redacted], Neal O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2022002101 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neal O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2022002101 Hearing No. 550-2020-00317X Agency No. 4E-995-0002-20 DECISION On March 9, 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 February 2, 2022, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Relations Specialist, Executive and Administrative Schedule (EAS)-19, at the Agency’s Alaska District in Anchorage, Alaska. On November 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (over 40) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when: 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. 2022002101 2 1. In August 2019, he learned that a younger employee was given a higher starting salary than the salary he was paid after working in the same position for 12 years; and 2. In October 2019, he was issued a proposed Letter of Warning in lieu of a seven-day suspension for improper conduct. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however, the AJ assigned to the case subsequently determined sua sponte that the complaint did not warrant a hearing and notified the parties of his intent to issue a decision without a hearing. Though the AJ offered the parties to respond to the notice, neither party responded. Consequently, the AJ issued a decision without a hearing on January 19, 2022, in favor of the Agency. In his decision, the AJ found that the Agency had legitimate, nondiscriminatory reasons for paying Complainant less than his colleague, namely that Complainant and his comparator (Comparator) were under different pay systems. In finding no discrimination, the AJ attributed Complainant’s lower pay to Complainant’s career trajectory in that Complainant had been promoted to his position directly from a craft position, whereas Comparator had been promoted from a craft position to various EAS positions, and then to the Labor Relations Specialist position. See AJ’s Decision at 3. The AJ ultimately found that there was “no evidence of pretext, and no evidence that age or EEO related activity infected Complainant’s salary.” Id. at 5. As for the Letter of Warning, the AJ found that the Agency issued Complainant the letter because Complainant “inappropriately accessed for his personal use and advantage, data, and information involving personal protected employee information related to [Comparator].” See AJ’s Decision at 3. The AJ found that there was no evidence of pretext because the record was devoid of “evidence indicating that employees, similarly to Complainant and of a different protected status, were not similarly disciplined for similar misconduct.” Id. at 6. Based on the foregoing, the AJ concluded that Complainant could not prevail on his complaint. 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. This appeal followed. Complainant did not file any contentions in support of his appeal. The Agency opposes the appeal and asserts that the Commission should dismiss the appeal for untimeliness, or, in the alternative, affirm its final order. 2022002101 3 As to the Agency’s request to dismiss the appeal as untimely, we find that Complainant received the Agency’s final order on February 7, 2022. See Complainant’s Notice of Appeal/Petition; see also USPS tracking number listed in Agency’s final order at 1. As the record clearly shows that Complainant filed his appeal on the 30th calendar day after receiving the Agency’s final order, we find his appeal to be timely. 29 C.F.R. § 1614.402(a). We turn now to the merits of the complaint. 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 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 factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, 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. 2022002101 4 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. 2022002101 5 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 April 14, 2022 Date