EEOC Appeal 2020001714

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kip D.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020001714
Hearing No. 443-2019-00105X
Agency No. 4J-530-0135-18
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 21, 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
During the period at issue, Complainant worked for the Agency as a City Carrier, Q/01, in
Milwaukee, Wisconsin.
On December 7, 2018, Complainant filed a formal EEO complaint, claiming that the Agency
discriminated against him based on race (African-American) when:
1. 	on July 11, 2018, Complainant was issued a Notice of Removal;
2. 	on July 18, 2018, Complainant was placed on Emergency Placement;
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.

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3. 	on or around August 22, 2018, Complainant was issued a Notice of Removal; and
4. 	management told Complainant’s coworkers not to associate with Complainant.
After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ issued a decision without a hearing in favor of
the Agency on November 5, 2019. On November 21, 2019, the Agency subsequently issued a final
order adopting the AJ’s finding of no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. 	At the summary judgment stage, the judge must believe the non-moving party’s evidence
and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue
of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.
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. James v. U.S. Postal
Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We
have recognized that not every factual dispute qualifies as a genuine issue that will prevent
summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31,
2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here,
Complainant has failed to point with any specificity to particular evidence in the investigative file
or other evidence of record that indicates such a dispute. Moreover, on appeal, Complainant does
not make any arguments concerning summary judgment. For the reasons discussed below, we find
that, even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in his favor.
Disparate Treatment – Claims 1 -3
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

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For a 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. 	See 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, non-discriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the 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. See St.
Mary's Honor Center 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. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Here, in Claim 1, on July 11, 2018, Complainant was issued a Notice of Removal by a management
official (“MO1”) (Caucasian). According to MO1, the disciplinary action was issued because
Complainant was recorded on security camera leaving work in his personal vehicle two hours
early. Complainant’s timecard did not reflect the time he actually left, reflecting that another party
had punched him out.
In Claims 2 and 3, Complainant stated that, on July 18, 2018, a second management official
(“MO2”) (African-American) placed Complainant on emergency placement and, on August 22,
2018, MO2 also issued Complainant a Notice of Removal. MO2 said the Notice of Removal was
issued because it was discovered that Complainant threw away “shop now” papers that he should
have delivered as addressed.
In sum, management testified that Complainant was issued discipline because he had another
employee falsify his attendance at work while he left early and discarded deliverable mail against
Agency 	policy. 	Once 	responsible 	management 	officials 	have 	articulated 	legitimate, 	non-
discriminatory reasons for the disputed actions, the burden returns to Complainant to prove, by a
preponderance of the evidence, that these reasons were a pretext designed to mask race
discrimination. Here, there was simply no evidence proffered by Complainant or in the record that
his race played a role in the decisions at issue.
Harassment – Claim 4

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Claim 4 addresses MO1 informing Complainant’s co-workers that associating with Complainant
could be damaging to their careers. MO1 and a co-worker stated that MO1 told a co-worker, in
jest, not to associate with Complainant. 	The AJ determined that Claim 4 is “an allegation of
defamation of character, not of employment discrimination.” The AJ determined that this claim
was “insufficient to state a claim of discriminatory harassment.”
To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. 	Complainant must also prove that the conduct
was taken because of his protected basis – in this case, his race. Only if Complainant establishes
both of those elements – hostility and motive – will the question of Agency liability present itself.
Here, even assuming the truth of Complainant’s allegation concerning a single isolated incident
where a management official told a coworker to stay away from him, there is no evidence to even
suggest that this incident was the result of Complainant’s race. A case of harassment is precluded
based on this finding that Complainant failed to establish that any of the actions taken by the
agency were motivated by his race. 	See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).
CONCLUSION
The Agency’s final order adopting the AJ’s decision by summary judgment finding no
discrimination is AFFIRMED.
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).

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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, 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.

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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 13, 2020
Date