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

Equal Employment Opportunity Commission

Mar 29, 2021

Appeal Nos. 2020001189, 2020001191 (E.E.O.C. Mar. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shad R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal Nos. 2020001189 & 2020001191 Hearing Nos. 480-2015-00784X & 480-2014-00319X Agency Nos. 4F-900-0109-15 & 4F-900-0064-13 DECISION Complainant filed timely appeals, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final orders, both dated October 10, 2019, concerning two equal employment opportunity (EEO) complaints 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Pursuant to 29 C.F.R. § 1614.606, we are consolidated the two appeals and will address both in this decision. At the time of events giving rise to both complaints, Complainant was employed by the Agency as a Letter Carrier (City), PS-01, at the Agency’s Carrier Annex facility in Santa Monica, California. On April 5, 2013, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of race (Asian), national origin (Vietnamese), disability2 (cut finger, left elbow tendonitis, pain in low and middle back, right shoulder, right elbow, right knee, right ankle and hip pain]) and reprisal for prior protected activity 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. 2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2020001189, 2020001191 2 1. On December 4, 2012, Complainant’s temporary Supervisor (S1: Latino) instructed Complainant to work in an unsafe manner outside of his restrictions; 2. On various dates, including April 2, 13, and May 10, 2013, Complainant’s then Supervisor (S2: white, Hispanic), scrutinized Complainant's work, commented that Complainant was "cheating" and "lying", and accused Complainant of trying to delay mail and of working slowly; 3. In the last two weeks of April 2013, S2 instructed Complainant to miss his therapy appointments; 4. On May 10, 2013, S2 gave Complainant a pre-disciplinary interview; 5. On or around May 10, 2013, S2 changed Complainant's start time; 6. On or around May 10, 2013, S2 instructed Complainant's to work outside his medical restrictions; and 7. On October 12, 2013, the Postmaster (P: race and national origin not provided in the record) disrespected Complainant and took Complainant into his office for a discussion. On April 24, 2015, Complainant filed a second EEO complaint alleging discrimination by the Agency on the basis of race, national origin, sex (male), and disability (right knee injury) when: 8. Complainant was denied a reasonable accommodation; 9. On January 2 and 16, 2015, the Agency made improper deductions from Complainant’s paycheck; and 10. On January 22, 2015, Complainant was told there was no work available within his restrictions and told to clock out. After its investigations into the complaints, the Agency provided Complainant with copies of the reports 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 in both cases. The Agency submitted motions for a decision without a hearing in both cases. The AJ subsequently issued separate decisions by summary judgment in favor of the Agency. The Agency issued its final orders adopting the AJ’s findings that Complainant failed to prove discrimination as alleged. The instant appeals followed. The Commission has decided to consolidate the appeals. 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. 2020001189, 2020001191 3 In rendering this appellate decision, we must scrutinize the AJs’ legal and factual conclusions, and the Agency’s final orders 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 decisions 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 orders adopting the AJ’s decisions. 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 2020001189, 2020001191 4 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. 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. 2020001189, 2020001191 5 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 29, 2021 Date