0120081783
10-16-2009
Herbert Y. Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Herbert Y. Fong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081783
Hearing No. 550-2007-00286X
Agency No. 4F-956-0054-07
DECISION
On February 25, 2008, complainant filed an appeal from the agency's
February 12, 2008 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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 order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a City Carrier at the agency's Citrus Heights Station in Citrus Heights,
California.
On March 1, 2007, complainant filed an EEO complaint alleging that he
was discriminated against and subjected to a hostile work environment on
the basis of disability (hand injuries, plantar fascitis, and autoimmune
disorder) when:
1. On January 22, 2007, he was not provided a reasonable accommodation
concerning the handicapped parking spaces;
2. On October 31, 2006, his request for FMLA leave was questioned and
he was required to bring in documentation which was deemed insufficient;
3. On three different occasions (June 10, 2006, October 27, 2006,
and sometime during the 25th pay period of 2006) he was charged leave
without pay (LWOP) after he had requested sick leave;
4. On January 31, 2007, management forced him to sign a new job offer
without giving him time to review it; and,
5. On February 1, 2007, his right to a ten-minute break was violated.
At the conclusion of the investigation, complainant was provided 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. Over the complainant's objections, the AJ assigned
to the case granted the agency's August 22, 2007 motion for a decision
without a hearing and issued a decision without a hearing on February
4, 2008. The AJ found that complainant failed to prove that he was
subjected to discrimination as alleged on any of the claims.
In her decision, regarding claim (1), the AJ dispensed with the initial
inquiry of whether complainant had established a prima facie case of
discrimination, and found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the agency
has two designated handicapped parking spaces available on a first-come,
first-served basis. The AJ found that four employees at the agency's
facility needed handicapped parking. The AJ found that the agency's
Officer-in-Charge (OIC) offered complainant the use of a supervisor's
parking space when a handicapped parking space was not available.
Further, the AJ found that OIC offered her own designated parking space
to complainant when a supervisor's parking space was not available.
The AJ found that even if the supervisors' parking spaces are 85-95 feet
away from the facility's entrance, as complainant claimed, complainant
has not shown that this was not a reasonable accommodation. Further,
the AJ found that the evidence of record indicated that complainant had
no restrictions on walking and nothing in the record indicated that it
would be a hardship for complainant to walk the additional 85-95 feet to
the supervisors' spaces. Therefore, the AJ found that the accommodation
provided by the agency was reasonable.
As to claim (2), the AJ found that the incident regarding complainant's
request for FMLA leave and management's request for medical documentation
was the subject of an earlier EEO complaint. The AJ found that the
issue could not be re-litigated and therefore dismissed the claim.
As to claim (3), the AJ found that as complainant had not brought these
matters to the attention of an EEO counselor within 45 days of the alleged
discriminatory incidents, the issues were time-barred. The AJ found that
complainant initially contacted an EEO Counselor on January 30, 2007.
The AJ dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(2).
As to claim (4), the AJ found that complainant failed to establish a
prima facie case of discrimination because he had not shown that he was
subjected to an adverse employment action. The AJ found that complainant
was asked to sign a job offer without being provided the required ten-day
review period. The AJ found that the job offer was reissued shortly
thereafter and complainant was given ten days to review it. The AJ
found that complainant suffered no loss of wages, loss of opportunity,
or other financial opportunity and had not shown that the terms,
conditions, or privileges of his employment were negatively impacted.
The AJ found that complainant therefore could not establish a prima facie
case of discrimination. The AJ then assumed arguendo that complainant had
established a prima facie case of discrimination and found that the agency
had articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, the AJ found that complainant's supervisor (S1) was not
aware of the ten-day review period, but once he was informed of it,
he followed the rule. The AJ found that complainant does not dispute
this and failed to demonstrate that the agency's reason was pretextual.
The AJ therefore found that complainant had not established that he was
discriminated against as alleged.
As to claim (5), the AJ found that complainant again failed to establish
a prima facie case of discrimination on the alleged basis. The AJ found
that even if complainant had, the agency had articulated a legitimate,
nondiscriminatory reason for its action, namely that management believed
that employees were not entitled to a second ten-minute break unless they
work their entire eight-hour shift. Complainant only worked five and a
half hours on the date in question and therefore his supervisors did not
believe he was entitled to a second ten-minute break. Further, the AJ
found that the record supported management's position that complainant was
not entitled to second ten-minute break. The AJ found that complainant
had presented no evidence establishing pretext and therefore had not
established that he was discriminated against as alleged.
As to complainant's claim that the above issues amounted to a hostile
work environment, the AJ found that to the extent that some of the claims
alleged were previously raised in an earlier EEO complaint, those claims
cannot be re-litigated here. As to the remaining claims, the AJ found
that the acts complained of did not rise to the level of creating a
hostile work environment and the record reveals no evidence that any
of the actions were taken based on complainant's disability. The AJ
therefore found that complainant had raised no genuine issue of material
fact that the agency discriminated against him based on his disability
and that the agency was entitled to summary judgment as a matter of law.
The agency subsequently issued a final order adopting the AJ's decision
without a hearing. The agency found that complainant failed to prove
that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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 must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount of
discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that
an administrative judge could order discovery, if necessary, after
receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that the record was adequately developed
for the AJ to issue a decision without a hearing.
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). After a thorough review of the record and assuming arguendo
that complainant is not only an individual with a disability, but also a
qualified individual with a disability, we find that the agency did not
deny complainant's request for a reasonable accommodation.1 OIC claims
that she did not deny complainant's accommodation request, rather she
offered him alternative parking when both handicapped spaces were taken.
Report of Investigation (ROI), Ex. C, OIC's Aff. at 1. OIC claims that
she offered complainant a supervisor's parking space and, when one of
those was not available, her own personal parking space. Further, OIC
claims the alternative parking spaces are "quite close and about the
same distance from the entrance" as the designated handicapped spaces.
Id. at 2.
The Commission has stated that the agency is not required to provide
the reasonable accommodation that the employee wants. A reasonable
accommodation must be effective. See U.S. Airways v. Barnett, 535
U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need
for effectiveness." Id. "An ineffective 'modification' or 'adjustment'
will not accommodate a disabled individual's limitations." Id.
The employer may choose among reasonable accommodations as long as the
chosen accommodation is effective. Complainant has presented no evidence
that the alternative parking spaces were an ineffective accommodation.
Thus, we concur with the AJ's finding that complainant has presented
no evidence showing that the agency failed to provide him a reasonable
accommodation.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), as mentioned
above, OIC claims that she did not discriminate against complainant and
offered complainant a supervisor's parking space or her own personal
parking space in the event a supervisor's space was not available.
ROI, Ex. C, OIC's Aff. at 1. OIC claims that the spaces offered
are close to the designated handicapped parking spaces. Id. at 2.
Complainant claims that the supervisors' spaces are about 87 feet away
from the handicapped spaces. ROI, Ex. A, Comp.'s Aff. at 2-3. We find
that complainant has offered no persuasive evidence establishing that
the agency's reasons as pretextual.
As to claim (2), we agree with the AJ that the issues raised were
previously addressed by the Commission in Fong v. United States
Postal Service, EEOC Appeal No. 0120073261 (June 16, 2009), request for
reconsideration denied, EEOC Request No. 0520090596 (September 25, 2009).
Consequently, we find that the AJ was correct to dismiss this claim.
As to claim (3), we find that the AJ was correct to dismiss the claim as
complainant failed to initiate contact with an EEO Counselor within 45
days of the alleged discriminatory incidents. Furthermore, we find no
evidence linking the LWOP issue to complainant's claimed disabilities.
As to claim (4), S1 claims that once it was brought to his attention that
complainant had ten days to sign the new job offer, he re-issued the
job offer and allowed complainant the requisite ten-day review period.
We find that complainant has offered no persuasive evidence establishing
that the agency's reasons are pretextual.
Finally, as to claim (5), S1 claims that the rule is that an employee
working an eight-hour day is entitled to 30 minutes for lunch and two
ten-minute breaks. S1 claims that complainant only worked five and a
half hours on the day in question and was therefore not entitled to a
second ten-minute break Complainant claims that he had no knowledge
of this policy and that it was never a problem before for him to take a
second ten-minute break when working less than eight hours. Evidence in
the record supports S1's contention. ROI, Ex. 24, p. 1. We find that
complainant has offered no persuasive evidence establishing that the
agency's reasons are pretextual.
Construing the evidence in the light most favorable to complainant,
complainant has failed to show by a preponderance of the evidence that the
agency's reasons were pretext for prohibited discrimination. Aside from
complainant's bare assertions, the record is devoid of any persuasive
evidence that could establish pretext or discriminatory animus on the
part of the agency. Accordingly, we find that complainant has failed
to produce any evidence establishing that he was discriminated against
on any claim.
Harassment/Hostile Work Environment
It is well-settled that harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently severe or pervasive.
Hurston v. United States Postal Service, Appeal No. 01986458 (January 19,
2001), (citing, Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998)). To establish a prima facie case of
hostile work environment harassment, a complainant must show that (1)
s/he belongs to a statutorily protected class; (2) s/he was subjected to
harassment in the form of unwelcome verbal or physical conduct because
of her/his protected class; (3) the harassment complained of was based
on her/his statutorily protected class; and (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. See 29 C.F.R. �
1604.11; Davis v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14,
2003).
A complainant must show that the actions complained of were taken because
of or based on her/his protected status and be sufficiently patterned
or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
An abusive or hostile work environment exists "when the workplace is
permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the condition of the victim's
employment." Harris V. Forklift Systems, Inc., 510 U.S. 17 (1993).
An alteration to an employee's working conditions exists if a tangible,
discrete employment action is taken, e.g., hiring, firing, transfer,
promotion, non-selection, or the agency's actions were sufficiently
severe and/or pervasive to create a hostile work environment.
In the instant case, we find that complainant has failed to show that he
was subjected to a hostile work environment on the basis of disability.
As stated above, claim (2) has been addressed in a previous EEOC decision.
The agency has articulated legitimate, nondiscriminatory reasons for its
actions regarding claims (1), (4), and (5) as discussed above. As to
claim (3), as a discrete act, complainant failed to timely raise the
issues alleged therein with an EEO counselor. The Commission finds,
however that "[b]ecause the incidents that make up a hostile work
environment claim collectively constitute one unlawful employment
practice, the entire claim is actionable, as long, as at least one
incident is part of the claim occurred within the filing period.
This includes incidents that occurred outside the filing period that the
[complainant] knew or should have known were actionable at the time of
then-occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at
2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp
v. Morgan, 536 U.S. 101, 117 (2002)). Thus, claim (3) as a discrete act
is untimely, however the allegations raised may be included as part of
complainant's hostile work environment claim.
Regarding claim (3) as part of complainant's hostile work
environment claim, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. OIC claims that complainant
would often drop his leave slips on a supervisor's desk and not wait to
have them approved. ROI, Ex. C, OIC's Aff. at 3. Further, OIC claims
that if a supervisor found the leave slip, then complainant would be
charged sick leave. Id. OIC claims that if the slips were not found
and complainant left without authorization, then he could have been
charged with AWOL (absent without leave) or LWOP. Id. OIC claims that
if complainant followed agency procedure, then these errors would not
have occurred. Id. at 4.
Viewing the record in the light most favorable to complainant, we find
that complainant has presented no evidence establishing that the agency's
reasons are pretextual. Even accepting as true complainant's allegation
that the environment was hostile, the record does not support a finding
of discriminatory hostility. At all times, the ultimate burden of
persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
Accordingly, complainant has not shown that he was subjected to a hostile
work environment on the basis of his disability.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
10-16-2009__
Date
1 We note that the Commission does not address in this decision whether
complainant is a qualified individual with a disability.
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0120081783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081783