0120073261
06-17-2009
Herbert Y. Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Herbert Y. Fong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120073261
Hearing No. 550-2007-00228X
Agency No. 4F956013406
DECISION
On July 11, 2007, complainant filed an appeal shortly before the agency
issued its July 16, 2007 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 accepted pursuant
to 29 C.F.R. � 1614.405(a).1 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 full-time City Carrier on a limited-duty assignment for the Citrus
Heights, California Post Office. On September 29, 2006, complainant
filed an EEO complaint alleging that he was discriminated against and
subjected to a hostile work environment on the bases of disability
(Rheumatoid Arthritis) and in reprisal for prior protected EEO activity
when: (1) from February 2006 to the present, he has been subjected to
harassment from his supervisors; (2) beginning on or about April 12,
2006, he has been denied overtime opportunities; (3) on October 3, 2006,
he was called into the Postmaster's (PM) office by the Officer in Charge
(OIC), who questioned him regarding who authorized overtime for him, and
asked him in front of others to identify his disability; (4) on October 3,
2006, OIC told him that he was not a Carrier; (5) on October 31, 2006,
OIC retaliated against him because he revised his Form 3971 to include
a request for Family and Medical Leave Act (FMLA) leave, instructed him
to furnish medical documentation, and came storming behind him yelling
out "go, go, go," and changed his leave to Leave without Pay (LWOP)
13 days later; and (6) on October 18, 2006, one of his supervisors (S3)
created a hostile work environment by bullying him, giving him direct
orders, and demanding that he only answer back with a yes or no answer.
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. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and, over the complainant's
objections, issued a decision without a hearing on July 9, 2007.
The agency subsequently issued a final order adopting the AJ's finding
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).
Harassment Claim
To establish a claim of harassment based on race, sex, disability2,
age, or reprisal, complainant must show that: (1) he is a member of the
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 the 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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998).
Claim 1
With respect to Claim 1, complainant identified a number of incidents
which he asserts constitute harassment. Specifically, in February
2006, complainant alleges that one of complainant's supervisors (S1)
said that what complainant does around the office is "irrelevant."
According to complainant, S1 looked directly at complainant and said,
"I am one of those limited duty employees," while shaking his head and
making comments regarding "Are you sure you're injured?" Complainant
also states that the next month, S1 told him to get a real job, and said
what complainant does around the office is meaningless. In addition,
complainant testified that there was a third incident of harassment but
failed to specify what conduct was harassing. S1 denied making any
of the alleged comments. No testimonial or documentary evidence was
produced to corroborate complainant's assertions with respect to S1.
Complainant also alleged that OIC told him that he is not a Carrier
and proceeded to follow him as he was preparing to leave, stating "go,
go, go." OIC testified that she made a statement to complainant of "no
overtime, you are not a carrier." OIC explained that complainant is
classified as a "limited duty Carrier." Complainant does not dispute
that his Carrier position has been substantially modified and that he
is medically unable to perform most (if not all) of the Carrier duties.
OIC also admits telling complainant to "go, go, go," as explained more
fully below. Complainant stated that he has not reported the alleged
harassment to anyone in management because in the past it has been of
no use.
Claim 3
Complainant alleges that on October 3, 2006, he was called into PM's
office by OIC and questioned about who authorized his overtime on
October 2, 2006. In addition, complainant alleges that he was asked,
in front of others, to identify his disability. The undisputed evidence
of record shows that on October 3, 2006, OIC discovered that complainant
had worked overtime the day before. OIC spoke with a supervisor (S5),
who told her that complainant knows he is not permitted to work Carrier
overtime. OIC told complainant that he was not to work over eight hours
a day, in accordance with his medical restrictions. OIC explained to
complainant that her concern was that complainant either worked outside
of his restrictions by performing Carrier duties, or that he was paid
overtime for work not performed since the only overtime available on
October 2, 2006, was Carrier overtime.
OIC admits to inquiring about complainant's disability and medical
restrictions, but did so in an effort to obtain a better understanding
of his restrictions while trying to figure out why the Customer Service
Supervisor (CSS) authorized the overtime. OIC explained that she did not
mean to upset complainant or to obtain any private medical information.
CSS testified that he is the individual who authorized complainant to
work overtime on October 2, 2006. According to CSS, there was mandatory
overtime for Carriers on that date and he believed complainant was
on the overtime-desired list. CSS also explained that he did not see
any reason complainant should not be assigned overtime on that date,
given that he is a Carrier. CSS also stated that he does not know what
duties complainant performed during the four hours of overtime he worked
on October 2, 2006. CSS further explained that OIC called him to her
office on October 3, 2006, to ask why complainant had worked overtime the
day before. CSS stated that he did not recall how he responded to OIC.
According to CSS, OIC said she could not see why complainant would work
overtime because he is unable to perform Carrier duties. CSS explained
the discussion continued on the subject of what complainant could and
could not do. In addition, CSS stated that complainant was called into
the meeting and said he wanted to be productive. CSS also testified that
he recalled someone asking complainant what his condition was, but he is
not sure who asked the question. CSS further asserted that complainant
has not complained to him of being harassed by management or supervisors.
Claims 4 and 5
The undisputed evidence of record shows that on October 31, 2006,
complainant turned in a PS Form 3971 to S3. S3 made several attempts
to ask complainant a question and complainant ignored him each time.
S3 reported the incident to OIC who, thereafter, approached complainant
to see if he would like to try to work things out with S3. Complainant
walked away from OIC without answering her. OIC told complainant to
come back so they could talk. Complainant responded by saying "no"
while throwing the 3971 form down on the desk. Complainant proceeded
to punch out and said, "I am off the clock, you cannot talk to me."
Complainant also informed OIC that he was going home sick for that day
and for the following day. Complainant then changed his 3971 form to a
FMLA leave request. OIC informed complainant that he needed to produce
medical documentation for suddenly needing to take FMLA leave. It is also
undisputed that OIC changed complainant's leave to LWOP pending proper
medical verification of his alleged illness, which she did not receive.
However, OIC subsequently changed 40 hours of complainant's LWOP to
annual leave. Lastly, it is undisputed that OIC told complainant to "go,
go, go," after he subjected her to his insubordinate behavior and rant.
Claim 6
The undisputed evidence of record shows that on October 18, 2006, S3 asked
complainant for his medical documentation and was told it was given to
another supervisor. S3 explained to complainant that he could not find
it and complainant responded, "It is not my fault that you supervisors
are inept and don't know how to do your job." Complainant continued to
answer S3 in that manner after each question, so S3 told complainant that
he did not need any rhetoric, just a yes or no answer. When complainant
continued acting in the same manner, S3 gave complainant a direct order.
Complainant refused to listen to S3 and walked away.
Disparate Treatment - Claim 2
To prevail in a disparate treatment claim such as Claim 2, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant alleges that since on or about April 12, 2006, he has been
denied overtime opportunities. The undisputed evidence of record shows
that overtime is assigned to the Carriers who are able to perform carrier
duties and whose names are on the overtime desired list. The undisputed
record also shows that because of his medical limitations, complainant
cannot carry a route, drive a vehicle, or sort mail. The undisputed
evidence of record also shows that on April 12, 2006, complainant accepted
a limited-duty position based upon medical restrictions that stated he
could not work more than eight hours per day.
Reprisal Claim
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Complainant stated that he did not believe the employment actions at
issue herein were motivated by his prior EEO activity. The responsible
management officials herein testified that complainant's prior EEO
activity was not a factor in any employment decision or action.
AJ's Conclusions
The AJ concluded that complainant did not present sufficient evidence to
support a harassment claim. The AJ noted that aside from complainant's
bare, uncorroborated assertions, the record is devoid of evidence
of hostility created by management and directed toward complainant.
The AJ even noted that complainant seemed to cause the disturbance
himself, because "he seems to be of the false assumption [sic] that his
supervisors cannot instruct, criticize or give him orders regarding his
work or behavior."
Regarding complainant's allegation that he was asked to identify his
disability in front of other people, the AJ found that the individuals
involved were complainant's two supervisors and OIC. The AJ noted that
these individuals were authorized to "be privy to" complainant's medical
records and/or the particulars of his disability, and that there was no
evidence that information related to complainant's medical condition
was disseminated to anyone who did not have a need to know about his
condition.
The AJ concluded that the evidence presented by complainant fails to meet
the severe or pervasive test. Moreover, the AJ noted that the record is
devoid of evidence that any similarly-situated employee of a different
protected status was or would have been treated differently with respect
to the claims asserted herein, nor is there any evidence to suggest
that management acted unreasonably based on the information they had,
including the insubordinate action and behavior of complainant. In the
absence of evidence of this nature or some evidence of a discriminatory
or a retaliatory motive, the AJ concluded that complainant cannot overcome
summary disposition in favor of the agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we concur in the
AJ's conclusions. Accordingly, we AFFIRM the final agency 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
June 17, 2009
Date
1 We note that complainant filed his appeal prematurely. However, because
the agency has since issued its final order, his appeal is now perfected.
2 For purposes of our analysis, we assume, without so finding, that
complainant is an "individual with a disability" within the meaning of
the Rehabilitation Act.
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0120073261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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