0120120944
04-12-2012
Hou Hsu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Hou Hsu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120120944
Hearing No. 550-2012-00027X
Agency No. 4F-940-0109-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 10, 2011 final action concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 City Carrier at the Agency's Sunnyvale, California Post Office.
On July 31, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, national origin, sex, disability, age, and in reprisal for prior protected activity when:
since November 11, 2009, he has been subjected to hostile work environment harassment in regards to, but not limited to: forced to submit additional medical documentation; his name was taken off the overtime desired list without his permission and he has been denied overtime; taken off route 8553 in violation of his doctor's note; denied right to bid on a route; not provided 8 hours of work; employees are permitted to smoke in his smoke-free vehicle; denied assistance; and ordered not to speak his language.
After the investigation, Complainant was provided with a copy of the report of investigation and with a notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On June 6, 2011, the assigned AJ issued an Order stating that it appeared that many of Complainant's claims in the instant formal complaint may have already been raised in prior formal complaints and at a hearing she conducted in November 2010. The AJ directed Complainant to resubmit his claims in the instant formal complaint but not to include any claims which have already been adjudicated and included in her decision following a November 2010 hearing concerning prior formal complaints. Complainant therefore was aware that his failure to provide clarification of his claims could result in dismissal of his hearing request.
By a document titled "Order of Dismissal" dated November 4, 2011, a Chief Administrative Judge (Chief AJ) dismissed the instant formal complaint on the grounds that Complainant did not comply with the AJ's June 6, 2011 Order, and dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claims that are pending or have been decided by the Agency or Commission. Specifically, the Chief AJ noted that rather than complying with the AJ's June 6, 2011 Order to clarify his claims, Complainant submitted a response dated October 26, 2011 which merely stated his claims as originally filed, with no discussion of the claims that had already been adjudicated. The Chief AJ further found that the matters raised in the instant complaint were already adjudicated in the November 2010 hearing conducted by the AJ.
Further, the Chief AJ noted that Complainant attempted to raise new claims in his October 26, 2011 response. Specifically, the Chief AJ noted that Complainant alleged that he was subjected to ongoing discrimination when the Agency violated the AJ's January 24, 2011 order by not paying his award; taking money out of his 401K plan without his permission; issuing him a Letter of Demand for indebtedness; and issuing him two USPS billing statements. The Chief AJ advised Complainant to contact the EEO office if he wishes to pursue these new claims.
The Agency subsequently issued a final action dated November 10, 2011, adopting the dismissal of the Chief AJ. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his representative, argues that he is subjected to ongoing discrimination. Specifically, Complainant argues that since filing the instant complaint, the Agency subjected him to discrimination by not paying him non-pecuniary compensatory damages; taking money out of his 401k plan without his permission; and issuing him a Letter of Demand for indebtedness.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
Following a review of the record, the Commission finds that the instant formal complaint states the same claim that is pending before the Commission under OFO Docket No. 0120120396, EEOC Case No. 550-2008-00361X and Agency Case No. 4F-940-0075-07.1 In the instant formal complaint, Complainant alleges that the Agency subjected him to discrimination when since November 11, 2009, he has been subjected to hostile work environment harassment in regards to, but not limited to: forced to submit additional medical documentation; his name was taken off the overtime desired list without his permission and he has been denied overtime; taken off route 8553 in violation of his doctor's note; denied right to bid on a route; not provided 8 hours of work; employees are permitted to smoke in his smoke-free vehicle; denied assistance; and ordered not to speak his language.
In Agency Case No. 4F-940-0075-07, Complainant alleged that he was discriminated against when on March 21, 2007, he was issued a 7-day suspension; on March 29, 2007, his supervisor did not follow proper procedures concerning PS Forms 3971; on April 13, 2007, he was issued a letter of warning; on April 17, 2007, he was told to provide additional medical documentation; on June 18, 2007, management told his co-workers that he was a bad influence and to limit their interaction with him; he was isolated from his peers; management commented that his filing of EEO complaints was a waste of time and money; on June 22, 2007, management refused to answer a question about a safety talk; on October 9, 2007, he was given a letter advising that he must relinquish Route 8721 and that he would become an unassigned regular; on October 9, 2007, he was given a new job offer which violated his medical restrictions; on October 12, 2007, he was told to provide medical documentation and was not allowed to work; since January 25, 2008, he was not accommodated, not allowed to work and was sent home; and on August 15, 2008, management did not award him a bid to Route 8724.
Further, Complainant alleged that since January 9, 2009, he has been subjected to a hostile work environment including safety and health conditions; requests for medical documentation; delay in bidding and the right to bid; was given job offers outside his restrictions; singled out; not used as a 204-B; having his EEO information disclosed to co-workers; harassed by his co-workers; falsification of documents; being issued a letter of warning; his start time changed; denied leave; issued a 14-day suspension; denied a copy of work instructions; not allowed to work a route; and was sent home. It is evident from the record that in both formal complaints, Complainant was referencing to the same claims. Therefore, we find that the Chief AJ properly dismissed the instant complaint for stating the same claims.
Finally, we note that the Chief AJ properly advised Complainant to initiate contact with the EEO Counselor if he wishes to pursue additional allegations.
Based on a thorough review of the record and contentions on appeal, we AFFIRM the Agency's final action implementing the Chief AJ's dismissal of Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
April 12, 2012
__________________
Date
1 The record reflects that the AJ consolidated Complainant's five complaints (Agency Case Nos. 4F-940-0075-07, 4F-940-0011-08, 4F-940-0092-08, 4F-940-0213-08 and 4F-940-0088-09) and conducted a hearing on November 15-17, 2010 (EEOC Case Nos. 550-2009-00333X, 550-2009-00334X, 550-2008-00361X, 550-2009-00124X and 550-2010-00065X).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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