[Redacted], Jermaine G, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 14, 2022

Appeal No. 2021003702 (E.E.O.C. Sep. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine G,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003702 Hearing No. 430-2021-00011X Agency No. 1K-271-0034-20 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 5, 2021 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 Mail Processing Clerk, 06/BB, at the Agency’s Processing and Distribution Center in Greensboro, North Carolina. On June 11, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and color (Brown) when: 1. On March 20, 2020, Complainant was placed on Emergency Placement; 2. On April 1, 2020, Complainant was given an investigative interview and not paid for the time spent at the investigative interview; 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. 2021003702 2 3. On or around June 16, 2020, Complainant was issued a Notice of Removal. The Agency’s Office of Inspector General (OIG) had received information from the North Carolina State Highway Patrol informing them that Complainant was possibly receiving drug parcels shipped from California to UPS Stores. OIG conducted an investigation into Complainant’s suspected unlawful drug activity, participating in a joint investigation with the Guilford County Sheriff’s Office. The OIG Report of the investigation described how Complainant used the mail to facilitate a scheme to distribute marijuana and how Complainant received mailed parcels containing unlawful drugs at commercial mail receiving agencies. The investigation led to Complainant being charged with felony criminal drug offenses. The Guilford County Sherriff’s Office had conducted surveillance on Complainant where the deputies observed him picking up a Priority Mail package that was later found to contain marijuana. Pursuant to a search warrant, on March 17, 2020, the deputies searched Complainant’s residence and vehicles, finding marijuana. At the time of the search, Complainant’s girlfriend was the only person inside the house. Complainant’s girlfriend worked for the Agency as a Sales and Services Distribution Associate (Window Clerk) at the Battleground Post Office in Greensboro, North Carolina. Complainant’s girlfriend was charged with felony possession of marijuana and maintaining a dwelling used for keeping and selling a controlled substance. On March 20, 2020, Complainant was placed on Emergency Placement in off-duty status without pay due to his recent arrest on allegations/charges of felony possession of marijuana, with the intent to sell or deliver marijuana, and two counts of maintaining a dwelling or vehicle used for keeping or selling a controlled substance. The notice issued to Complainant stated there was reasonable cause to believe that retaining Complainant in a duty status could result in damage to the Agency’s property and/or loss of mail/funds. While Complainant was on Emergency Placement, Complainant was given an investigative interview on April 1, 2020, by his direct supervisor (Supervisor). The investigative interview had been scheduled two weeks prior. Supervisor explained that Complainant’s had numerous unscheduled absences and the Agency needed to ascertain if discipline was necessary to change Complainant’s behavior. Complainant believed he was discriminated against when he was not paid for attending the investigative interview. Supervisor testified that since Complainant was on Emergency Placement, he was not entitled to compensation for attending the interview On June 16, 2020, the Manager of Distribution Operations issued Complainant a Notice of Removal dated June 16, 2020, for improper conduct. The Notice of Removal cited the facts and investigation by the Sheriff’s Office and OIG, stating it appeared the drugs observed in Complainant’s car and residence on March 17, 2020, were obtained using the Agency’s mailing system via commercial mail receiving agency addresses that were rented by fictitious individuals and companies. Complainant filed grievances regarding being placed on Emergency Placement and the Notice of Removal. The grievances were subsequently settled with the removal being reduced to a suspension and Complainant was compensated a lump sum of $13,113. 2021003702 3 After its investigation into the complaint, 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 in favor of the Agency. In the decision, the AJ found that the record demonstrated that the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claims (1) and (3), Complainant was placed on Emergency Placement in an off-duty status due to Complainant being charged with unlawful drug criminal offenses. An OIG report showed that Complainant received unlawful drugs at commercial mail receiving agencies and used the mail to facilitate a scheme to distribute marijuana. Based on this, Complainant was issued a Notice of Removal. The investigative interview in claim (2) was related to Complainant's unscheduled absences from February 6, 2020 through March 18, 2020. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination as alleged. The Agency issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues, amongst other things, that the Commission should reverse the AJ’s finding that Complainant failed to prove discrimination as alleged. Additionally, Complainant raised several arguments regarding the AJ’s handling of his case. ANALYSIS AND FINDINGS As an initial matter, the Commission will address Complainant's contentions on appeal regarding the manner in which the AJ adjudicated his complaint.. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see also Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed all documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. 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). 2021003702 4 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 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. As a result, the Commission finds that Complainant was not subjected to discrimination 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 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. 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. 2021003702 5 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. 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. 2021003702 6 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 September 14, 2022 Date