0120073120
12-17-2009
Dale Nguyen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Dale Nguyen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120073120
Agency No. 4K-220-0122-06
DECISION
On June 29, 2007, complainant filed an appeal from the agency's May 30,
2007 final decision 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
Whether the agency properly found that complainant was not subjected
to discrimination based on his race and national origin when he was
suspended and issued a Notice of Removal.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Letter Carrier at an agency facility in McLean, Virginia.
The record reflects that on August 9, 2006, complainant's supervisor, the
Supervisor Customer Service (SCS1), ordered him to assist with a route,
and he refused because he was not feeling well. Pursuant to SCS1's
request, he then submitted a request for sick leave. SCS1 observed
that complainant did not fill out the form properly, and he ordered
complainant to submit a new form. Complainant alleged that SCS1 threw
the form at him, and he, complainant, walked away to discuss SCS1's
alleged conduct with a manager, the Supervisor Customer Service (SCS2).
SCS1 and another management official also walked into SCS2's office to
participate in the discussion.
Complainant alleged that SCS1 yelled at him in the office, and a
management official assaulted him during the exchange. He also alleged
that the officials refused to allow him access to a union steward
and that he was injured when the officials attempted to prevent him
from calling the police on his cell phone. The management officials
disputed complainant's version of what transpired, alleging instead
that he threatened to hurt himself and sue the agency. The management
officials further alleged that he proceeded to hit his head on various
pieces of furniture in the office until they physically restrained him
to prevent injury. After the altercation came to an end, complainant
left the facility for the day to seek medical attention.
On August 10, 2006, complainant received a Notice of Emergency Placement
in an Off-Duty Status. On August 13, 2006, he was issued a Notification
of Pre-Disciplinary Interview requiring him to schedule a meeting with
SCS1 to discuss his "improper conduct, and behavior." On August 24,
2006, he was issued a Notice of Removal for improper conduct.
Complainant filed a grievance regarding these allegations. On October 10,
2006, the parties settled the matter. The suspension was rescinded, and,
although complainant was awarded no back pay, he was allowed to use sick
or annual leave to cover any or all of the hours he was in non-pay status.
The Notice of Removal was reduced to a 14-Day Paper Suspension, and he
was allowed to return to work on Monday, October 16, 2006. Complainant
also wrote a letter, dated October 10, 2006, apologizing to management
officials for what transpired on August 9, 2006.
On December 5, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Asian) and national
origin (Vietnamese) when:
(1) On August 9, 2006, he was issued an Emergency Placement (suspension)
in a non-duty, non-pay status; and
(2) On August 24, 2006, he was issued a Notice of Removal for "Improper
Conduct."
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged. Specifically, the
agency found that complainant failed to establish a prima facie case of
race or national origin discrimination and that he failed to establish
pretext. The agency also found that "per the grievance settlement that
you entered into freely, as you were reinstated and were allowed to use
your own personal leave to cover any or all of the hours that you were
in a non-pay status, this renders your claim moot."
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination. He argues that he established a prima facie case of
discrimination; the agency improperly relied upon an apology letter
issued as part of a settlement agreement as evidence in the record; and
the agency offered false reasons for suspending and firing him. He argues
for the first time that agency officials violated the Rehabilitation Act
by refusing to allow him to return to work for medical reasons without
first performing an individualized risk assessment. He also argues
that the agency's decision to subject him to two adverse actions for
the same instance of misconduct violated his right to advance notice
and due process. Finally, he argues that the grievance settlement did
not render his claim moot. The agency did not provide a statement in
response to the appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
We first address the agency's determination that complainant's complaint
was moot due to the settlement agreement entered into by the parties
during the grievance process. A complaint is moot and a person is no
longer aggrieved when it can be said with assurance that: (1) interim
relief or events have completely and irrevocably eradicated the effects
of the alleged violation; and (2) there is no reasonable expectation
that the alleged violation will recur. See Kuo v. Department of the
Navy, EEOC Request No. 05970343 (July 10, 1998). The agency determined
that the complaint was moot because complainant's suspension and the
Notice of Removal were rescinded. However, we find that the agency
failed to provide any evidence, beyond a mere statement, that there
is no reasonable expectation that the alleged violation will recur.
Therefore, we find that the complaint is not moot.
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
discrimination based race and national origin, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions. SCS1
and SCS2 submitted affidavits into the record stating that complainant
attempted to hurt himself in an office in the presence of management
officials. SCS1 indicated that complainant was issued an Emergency
Placement and Notice of Removal "to end his self inflicting damage,
i.e., [b]anging his head on different piece of furniture or machinery."
SCS2 similarly indicated that complainant "was put on Emergency
placement for violating safety rules and regulations, which was injury
to himself, and or others," and he was issued a Notice of Removal for
"violation of safety rules and regulations." The Postmaster submitted
an affidavit indicating that he concurred with both actions because he
felt complainant "was injurious to himself." The Postmaster further
stated that he concurred with the removal, in part, because complainant
violated several agency policies, including his duty to discharge his
assigned duties effectively, obey instructions from his supervisor,
and conduct himself in a manner that reflects favorably upon the agency.
Complainant now bears the burden of proving by a preponderance of the
evidence that the agency's articulated reasons for its actions were a
pretext for discrimination. Upon review, we concur with the agency's
determination that complainant failed to establish pretext. Moreover, the
record is devoid of any evidence that the agency's actions were motivated
by discriminatory animus. Contrary to complainant's contention that the
agency found no discrimination by improperly considering the letter of
apology he submitted in connection with the October 10, 2006 settlement
agreement, we find that the agency's decision was properly predicated
on a review of the affidavits in the record. Although complainant
disputes the testimony provided by management officials and argues that
the officials attempted to intimidate him, he did not request a hearing,
and, as a neutral party, we are not persuaded, based on the record of
investigation, that complainant has shown that the agency's articulated
reasons for its actions were a pretext for unlawful discrimination based
on race or national origin.
Finally, complainant raises new allegations on appeal, including a
claim that he was denied due process and a claim that he was subjected
to disability discrimination in violation of the Rehabilitation Act.
As complainant failed to raise these issues at any time during the
processing of his EEO complaint prior to this appeal, we find that they
are not properly before us and decline to address these issues. We note
that complainant had ample opportunity to allege that he was subjected
to disability discrimination, but he only alleged discrimination based on
race and national origin during EEO counseling, in his formal complaint,
and during the investigation.
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's final decision finding no discrimination
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____12/17/09______
Date
2
0120073120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120073120