0120092534
11-17-2009
Jeffrey K. Ng, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jeffrey K. Ng,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092534
Agency No. 4C-080-0028-07
Hearing No. 530-2007-00361X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 6, 2009 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.
On March 27, 2007, complainant filed the instant formal EEO complaint.
Therein, complainant claimed that the agency discriminated against him on
the bases of national origin (Asian) and in reprisal for prior protected
activity when:
beginning on or about June 2006, he has been subjected to harassment,
regarding working conditions, verbal abuse and false accusations.
Following the agency's investigation into the claims, on March 27,
2009, a hearing was held before an EEOC Administrative Judge (AJ).
After considering the testimony of the witnesses, the AJ found that
complainant did not establish a prima facie case of race and/or
reprisal-based harassment. The AJ further found that assuming ,
arguendo, that complainant established a prima facie case of race
and/or reprisal-based harassment, the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.1
The AJ noted that complainant's former first-level supervisor (S1) denied
subjecting complainant to a hostile work environment. The AJ noted,
for instance, that S1 stated he received complaints from other employees
concerning complainant's lunch break. Specifically, S1 stated that
because employees "have complained '[complainant's] getting a 45-minute
lunch, I'm getting a 30-minute lunch. I go to washup, I go punch out, I
go to lunch. He's prepping it.'" S1 stated that he had a discussion with
complainant and reminded him of the policy for breaks, and that there is
a five-minute wash up time with no preparation time (for getting one's
lunch ready) allowed. S1 stated that he told complainant "the rules
are you come off the window, you go to wash up, you punch out, you go
to lunch. That was the extent of it." With respect to complainant's
allegation that S1 told him "you're watching us so we're watching you,"
S1 denied making such a statement.
With respect to complainant's allegation that he was denied leave for
December 2, 2006, the AJ noted that S1 stated that complainant "came to
me a week before, approximately a week before the date that he wanted. I
looked up on the calendar. The date had been taken....it was taken by [a
named employee], approximately a month and a half prior to his request.
Contractually, I had no choice but to deny his slip, given him his slip
back saying that the date had been taken." S1 stated that he informed
complainant that it was "nonprime" time leave and that such leave is
awarded to the senior person. The AJ noted that complainant claimed
he discussed the denial of leave with the Postmaster (PM) and that PM
suggested that complainant speak again to S1 directly. The AJ noted that
S1 testified with credence that complainant never approached him about
this issue and did not show up to work when required. Specifically, S1
stated that complainant "never came to me. [Complainant] failed to show
up for work that day." The AJ noted that in his testimony, complainant
admitted to not coming in the next day when his leave was not approved
and was properly admonished for his failure to follow instructions.
The AJ also noted that complainant agreed if an employee does not turn
in a leave slip that it is the employee's fault if disciplined. The AJ
noted while complainant indicated he was "sick and tired" of the work
situation, he did not present evidence of an illness or any indication
to support a finding of race or reprisal-based harassment.
The AJ noted that PM stated that complainant came to see him concerning
the denial of his leave request for a day off on December 2, 2006.
PM stated that vacation days "are awarded . . . per the local agreement,
on a first-come, first-served basis. The date that [complainant] had
asked to have off was already taken by another employee, [named employee].
[Complainant] stated that he needed to have off and it was a Saturday
that he had requested to have off . . .." PM stated that S1 prepares
the daily clerk schedule and "there is a provision in the local contract
that says if management feels it can, it can let additional people off.
Since [S1] is the administrator for the clerk craft I told [complainant]
to take his concern to [S1] and to see if [S1] could have another person
take off on that day."
With respect to complainant's allegation that S1 called him a "crybaby,"
the AJ noted that S1 stated "there are very few days where I went to work
where the stress or the pressure where I wasn't constantly running around
like a crazy person, doing countless things, but every once in a while
you got a day, and it's a day where you usually don't get much done but
you're in a good mood, everything is going good, you're happy-go-lucky."
S1 further stated that on this particular day in question, he was in
a good mood and chimed in after a named clerk (C1) made reference to
a song he knew. S1 stated that C1 later came to him and informed him
that complainant "is upset you said something to him. And I was like,
what are you talking? - - I had no idea what she was talking about.
And she says, well when you said 'bad boys, bad boys.'" S1 stated that
he told C1 that he was not talking to complainant and "I wasn't looking
at [complainant]. I was walking by and was reacting to a piece of a
conversation." S1 stated that whenever he gives safety or service talks
to his employees, I make a point of "telling my employees if I ever say,
do or act in a way that you find offensive, no matter how trivial or not,
and [complainant] knows I've said this, come see me, let me know what
I've done. I'll apologize. I'll fix it. I'll correct my behavior if
it's wrong." S1 stated that complainant never came to see him regarding
this incident.
With respect to complainant's allegation that S1 said something negatively
behind the window, PM stated "well, I don't know what was specifically
said. [Complainant] did come to me and he was upset with the treatment
that he had received from [S1]. There was some disagreement, and when
I talked to [S1] I talked to [S1] after the incident and there was a
difference in what had been said. But like I told [S1], whether there's
a difference in what was said or what wasn't said, making a comment
that was derogatory behind the window screen line was not appropriate
and that that practice should be discontinue."
In regard to the "open" leave slip issue, PM stated that complainant
was requesting leave for an indefinite period of time; but that if an
employee "is going to ask for an extended period of time off, they have
to have it certified by medical documentation. That was, we can set up
with - - number one, it relieves the employee of the responsibility of
letting us know on a daily basis that they're not going to be in because
they've been certified for a certain period of time by a physician, and
then there's follow-ups based on what that time frame set by the doctor."
Regarding complainant's allegation that there was a situation in the
vault and PM questioned him about some missing money, PM stated "I don't
recall the incident, no."
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
Complainant has offered no persuasive arguments on appeal regarding the
propriety of the AJ's finding of no discrimination. The Commission
determines that the AJ made a thorough and detailed analysis in her
final decision.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's
final action because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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
November 17, 2009
__________________
Date
1 The AJ did not address whether complainant established a prima facie
case of national origin-based harassment. The Commission determines
that because the agency articulated legitimate, nondiscriminatory reasons
for its actions, we find it unnecessary to address this issue further.
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0120092534
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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