EEOC Appeal 2020000539

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elias R.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 2020000539
Hearing No. 480201900352X
Agency No. 1F904002818
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 8,
2019 Final Order concerning an 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 Tractor Trailer
Operator, PS-08, and served as a Chief Union Shop Steward at the Los Angeles Network and
Distribution Center ("LANDC") located in Bell, California.
On October 2, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him
to unlawful retaliation for prior protected EEO activity (Agency Case Nos. 1F904001317 and
1F904000718) when, on June 15, 2018, he was issued a Notice of Suspension of 14 days.2
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 Complainant filed Grievance No. F15V1FC, 18358272, on May 9, 2018, where the Union
requested 	that the Agency rescind the 14 Day Suspension Notice because it concerned actions

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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 Agency submitted a motion for a decision without a hearing. On
July 30, 2019, over Complainant’s objection, the AJ issued a decision by summary judgment in
favor of the Agency.
During the relevant time frame, Complainant’s first level supervisor (“S1”) was a Supervisor,
Transportation Operations (“STO”)/Network Specialist. His second level supervisor (“S2”) was a
Manager, Transportation and Networks, and the alleged responsible management official in this
complaint. S2 was aware of Complainant’s past EEO activity, as Complainant named him as a
responsible management official in an EEO complaint before.
Since 2016, Complainant, in his capacity as a Union Steward, had been working to assist his
coworker (“C1”) recover 8 hours (1 day) of pay that had not been properly recorded.3 Believing
Management would rectify the oversight, C1 allowed the deadline to file a grievance on the matter
lapse. Complainant continued to regularly ask S2 when C1 would be paid for the hours he worked,
and S2 never gave a straight answer, only “I’ll get to it” or that he needed to ask the Finance
Manager (“FM”).
On May 16, 2018, Complainant submitted a Request for Information to S2 regarding a grievance
for a different coworker. S2 wrote down FM’s name. Interpreting this as authorization to meet
with FM, Complainant called FM and arranged a meeting that afternoon. Complainant lacked key
card access to the Finance Office, which was on the second floor of the main building at LANDC.
According to Complainant, the STO on duty that day (“STO-1”) provided him with a PS 7020
form authorizing him to go to the Finance Office.
After obtaining the necessary information from FM for the grievance he was working on,
Complainant brought up C1’s missing pay. By Complainant’s account, FM located C1’s record,
asked a few questions, then printed a PS 2240 for C1’s missing pay. FM instructed Complainant
to have S2 sign it then bring it back and he (FM) would scan it into payroll. Complainant brought
the PS 2240 to S2, who, rather than signing it, said, once again that he would look into the matter.
Then, S2 made a copy of the PS 2240 for himself, and handed the original back to Complainant.
According to S2, he called FM, as he had not authorized the reimbursement of 8 hours to C1.
The record reflects that on May 16, 2018, FM submitted a signed statement recounting how that
day, Complainant came to him requesting information about C1’s payment adjustment for PP17-
2-2016.
Complainant took in the course of a grievance investigation. As of the instant appeal, it appears
Complainant’s grievance about the suspension notice was pending at Step 3.
3 The AJ’s decision referenced two days instead of one.

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[Complainant] showed me a grievance and said that [S2] said to see me about a
payment for [C1]. I prepared form 2240 for adjustment and gave [it to Complainant]
to have [S2] sign. This is all I have done against this form 2240. 	However [S2]
refuse[s] to sign on this form 2240 so this adjustment is still sitting as pending.
FM’s statement also provides that Complainant told FM that C1 never got paid for 8 hours worked.
According to FM, C1 was paid the full 40 hours that week, but C1 disputed the coding of 8 hours.
On May 24, 2018, Complainant was subject to a disciplinary interview conducted by a STO
(“STO-2”) who reported to S2 as a first level supervisor. Based on Complainant’s responses, and
witness statements, STO-2 found that Complainant failed to follow instructions and engaged in
unacceptable conduct in violation of Agency policy. As Complainant had received a letter of
warning for conduct less than a month earlier, and given the nature of his conduct in this instance,
the TSO recommended to S2 that Complainant be subject to a 14 day suspension. S2, the occurring
official agreed.
On June 14, 2018, Complainant was issued the Notice of 14-Day Suspension. Complainant denies
providing false statements to FM or any other Management Official and contends that he had a PS
7020 “in hand” authorizing him to visit the Finance Office.
The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
retaliation as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
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 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.

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Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she must first establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence
that the Agency acted on the basis of a prohibited reason. 	St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency’s proffered legitimate nondiscriminatory reason for issuing Suspension Notice was
that Complainant engaged in unacceptable conduct and failed to follow instructions, in violation
of Agency policy. According to the Suspension Notice, Complainant went to the finance office
unauthorized, and made false statements to obtain a payroll adjustment for another employee.
Specifically, Complainant told FM that S2 sent him there on behalf of C1. FM prepared PS Form
2240 for an adjustment based on the information Complainant provided and gave it to Complainant
for S2 to sign, which Complainant disputes.
The Agency also reasoned that the Suspension Notice was consistent with its policies, including
the Agency’s Employment and Labor Relations Manual (“ELM”) provisions ELM 665.13
employees are expected to discharge their assigned duties conscientiously and effectively, ELM
665.15, obedience to orders, and ELM 665.16, which provides, among other things, that
“employees are expected to conduct themselves during and outside of working hours in a manner
that reflects favorably upon the postal service…the Agency requires employees to be honest,
reliable, trustworthy, courteous, and of good character and reputation.” 	The severity of the
disciplinary action was in light of Complainant’s recent letter of warning, and Complainant’s
leadership role as Chief Shop Steward.

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On appeal, Complainant argues that a question of fact exists, warranting a hearing, because the AJ
made an improper credibility determination by giving more weight to FM’s account of their
meeting on May 16, 2018 than Complainant’s. The question before us is S2’s motivation for
issuing the Notice of Suspension, not what exactly was said during the meeting. We find that the
AJ properly considered FM’s statement because S2 relied on it in reaching his decision to issue
the Notice. We find no question of credibility to warrant a hearing.4
The evidence reflects that as the concurring official, S2 relied on the recommendation and evidence
provided by STO-2. STO-2 testified that she conducted Complainant’s pre-disciplinary interview
and it was her decision to recommend a 14-Day Suspension. She reasons that during the pre-
disciplinary meeting, Complainant revealed through his answers that he failed to follow
instructions and a engaged in unacceptable conduct.
We note that S2 and STO-2 also relied on signed statements other than that of FM obtained during
the investigation. S1 provided a signed statement that she denied Complainant’s grievance on
recovering pay for C1 and she never authorized Complainant to obtain payment. 	In a signed
statement, STO-1 denied authorizing Complainant to seek payment for C1, and stated that she
never discussed the matter with Complainant. S2, who would be responsible for signing off on a
payroll adjustment for C1 testified that he never authorized payment or for Complainant to meet
with FM about C1 and Complainant does not dispute this. To the extent Complainant was
authorized because he was acting in his capacity of Union Steward, there is no formal settlement
authorizing payment of 8 hours of work to C1.
In reaching their decision to issue the Notice of Suspension, S2 and STO-2 also considered
Complainant’s 	statements 	in 	the 	pre-disciplinary 	interview 	transcript, 	establishing 	that
Complainant was provided an opportunity to submit evidence that he did not make false
statements, by showing he was authorized to visit FM to obtain a payroll adjustment of 8 hours for
C1. When asked who gave him the authority to go to FM, Complainant responded, “whoever the
supervisor was that day, I don’t recall, but I have a 7020 [form providing the authorization].”5
When asked if he could provide the PS 7020, Complainant responded that “it’s at home.” He also
stated that he was provided with documentation to request the PS 2240 from FM, with no further
elaboration. Complainant has not provided either document.
4 On appeal, Complainant barely references the alleged discriminatory act at issue, instead focusing
on C1, and in a transparent attempt to litigate a matter he lacks the standing to raise, argues
credibility issues exist because the AJ gave S2 “a pass” on the “basic question of honesty” because
the AJ did not further develop the record on what S2 found when he “looked into” the missing
pay. Likewise, the AJ appropriately declined to address “S2’s excuses for not investigating C1’s
complaint.” C1 is not a party to this complaint, and the alleged harm (8 hours of work unpaid) is
not the claim before us. Concerningly Complainant’s efforts to zealously represent his coworkers,
appear to come at his own expense.
5 He later identified STO-1 as the supervisor who provided the PS 7020.

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The evidence available to S2 and STO-2 at the time they issued the Notice of Suspension supports
the Agency’s legitimate nondiscriminatory explanation. Other than bald statements, Complainant
has not offered evidence that would indicate S2 issued the Suspension Notice as retaliation for
Complainant’s prior EEO activity.
CONCLUSION
Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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
athttps://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, 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.

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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
October 7, 2020
Date