EEOC Appeal 2020000114

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Julius P.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020000114
Hearing No. 460-2018-00385X
Agency No. 1G-701-0007-18
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August
8, 2019 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Custodian, Level 4, at the Agency’s Lafayette
PDF facility in Lafayette, Louisiana.
On January 31, 2018, Complainant filed an EEO complaint claiming that the Agency subjected
him to discriminatory harassment on the bases of sex (male), disability and reprisal for prior
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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protected EEO activity (prior complaint, EEOC Appeal No. 0120091395). In support of his claim
of ongoing harassment, Complainant cited to the following incidents:
1. 	On November 13, 2017, Complainant was issued a Letter of Warning.
2. 	On unspecified dates, Complainant’s first-line supervisor came into Complainant’s work
area and, “stared [him] down,” harassed Complainant about work performance, and
confronted him about frivolous situations.
3. 	On September 29, 2017, Complainant was charged Absent Without Leave (AWOL).
4. 	Beginning on or about March 6, 2018, and continuing, Complainant has been assigned
work tasks outside of his medical restrictions.
5. 	On unspecified dates, management denied Complainant overtime opportunities.
6. 	On unspecified dates, Complainant was made to work outside while a junior co-worker
was allowed to work inside.
7. 	On May 5, 2018, Complainant heard a supervisor discussing Complainant’s medical
restrictions with one of Complainant’s coworkers.
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 (EEOC or Commission) Administrative Judge (AJ). 	Complainant
timely requested a hearing. The Agency submitted a Motion for Summary Judgment. Complainant
did not respond to the Agency’s motion. When the Complainant did not object, the AJ assigned to
the case granted the Agency’s motion and issued a decision without a hearing on August 1, 2019.
On August 8, 2019, the Agency issued a final order adopting the AJ’s finding of no discrimination.
The instant appeal followed. No timely arguments were submitted by Complainant in support of
his appeal.
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 generally 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.

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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. Here, Complainant
did not respond to the Agency’s motion for summary judgment and on appeal has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. 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.
To establish a claim of hostile environment harassment, Complainant must show that: (1) he
belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove his discriminatory 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 a protected basis – in this case, his sex, disability
or prior protected activity. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.
With regard to his disability claim, the evidence shows that Complainant walked with a limp and
had knee surgery in March 2017. 	When he returned to work, he was medically restricted from
twisting at the knee or climbing. Complainant requested and was granted placement on light duty.
Based on this evidence, we will assume for the purposes of analysis that Complainant was an
individual with a disability within the meaning of the Rehabilitation Act.
Complainant also alleged that he had filed several EEO complaints in 2015 and 2016 and at least
some of his supervisors were aware of this protected activity. The Agency did not dispute this
claim.
Based on the evidence developed during the investigation into the complaint, we conclude that the
AJ correctly determined that Complainant either failed to establish that the incidents occurred as
alleged or cast doubt on the legitimate, non-discriminatory reasons asserted by the responsible
management officials for the disputed actions.

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As such, the claim of discriminatory harassment is precluded based on our findings that
Complainant failed to establish that any of the actions taken by the Agency were motivated by his
protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Allegation 1
Complainant’s supervisor (“S1”) (male) testified that Complainant received the November 13,
2017 letter of warning for refusing to take the CTC (Custodial Team Cleaning) process training.
The evidence shows that on October 25, 2017, Complainant refused to participate in the CTC
process training and was subsequently issued the letter of warning. While Complainant testified
that he believed that S1 issued Complainant the letter based on his protected bases, he does not
provide any evidence beyond mere assertions.
Allegation 2
Complainant testified that S1 observed him working, and S1 testified to the same conduct.
Complainant stated that S1’s actions were meant to harass Complainant. However, S1 testified
that he was observing Complainant to understand why a cleaning route that should take two and a
half hours was taking Complainant six hours. The testimony of Complainant and S1 are not in
opposition of each other, instead they seem to substantiate each other. Beyond his bare
suppositions, Complainant provided no evidence that S1’s motives were discriminatory.
Allegation 3
Both Complainant and S1 agree that S1 charged Complainant as AWOL and that the AWOL was
later withdrawn, and the appropriate leave was entered into the attendance record. S1 concedes
that Complainant had submitted his leave request, but asserts it was later misplaced resulting in
the AWOL. However, as noted, the matter was corrected once the error was recognized. Under
these circumstances we do not find that a preponderance of the evidence demonstrates
discrimination or retaliation occurred.
Allegations 4 and 6
Complainant testified that he was assigned work outside of his medical restrictions, including
being required to work outside while a junior employee was allowed to work inside. Complaint’s
supervisor during that period, Maintenance Mechanic Supervisor (“MMS”), denied Complainant’s
allegation, noting he was approved for light duty and was provided assignments within his medical
restrictions. Complainant’s restrictions did not prohibit him from working outside. Without any
evidence to support Complainant’s claim, the record does not support by a preponderance of the
evidence that this occurred, or if it did, that there was any discriminatory motivation.

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Allegation 5
Complainant testified that he was denied overtime opportunities. However, MMS testified that
Complainant was offered overtime, but refused the offers because he asserted he was unable to do
the work that needed to be done. MMS testified that Complainant stated that he was on light duty
and believed it was management’s responsibility to find overtime work he could do. 	However,
such work was often not available.
Another management official, Mechanical Manager (“MM”), testified that Complainant was not
offered overtime because the available overtime work was not within Complainant’s medical
restrictions. MM stated that Complainant provided documentation and verbally informed
management of what duties he was unable to perform. MM stated that when an employee works
overtime, they are not guaranteed to perform the same tasks as they would during their regular
tour, and what overtime duties an employee performs were determined by the supervisor based on
available work. MM also testified that there was no schedule for what work was available during
an overtime shift, and that it often happened that the work available was outside of Complainant’s
medical restrictions.
Allegation 7
MMS testified that he does not discuss employees’ medical information with other employees. He
did concede, however, that he did disclose to the Electronic Technician (ET) that Complainant was
on light-duty, without providing any specific medical information, in a work-related conversation.
ET testified that he was aware of Complainant’s knee replacement directly from Complainant.
Under these circumstances, we do not find that MMS’s actions were sufficient to constitute an
improper disclosure of medical information in violation of the Rehabilitation Act.
CONCLUSION
In sum, we conclude that neither during the investigation, nor on appeal, has Complainant proven,
by a preponderance of the evidence, that any of the incidents he proffered to support his claim of
ongoing discriminatory harassment were motivated by his protected bases. The Agency's final
order implementing the AJ's finding of no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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
September 14, 2020
Date