01A42686_r
07-14-2004
Kelly Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kelly Fong v. United States Postal Service
01A42686
July 14, 2004
.
Kelly Fong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42686
Agency No. 4F-945-0108-02
Hearing No. 100-A3-7931X
DECISION
Complainant filed this appeal from the February 10, 2004 agency decision
implementing the January 7, 2004 decision of the EEOC Administrative Judge
(AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the bases
of race (Asian), age (D.O.B. February 2, 1948), and reprisal for prior
EEO activity when: (1) complainant was denied his merit pay increase,
i.e., his annual based increase was only $2,994.00 instead of $4,791.00;
and (2) on January 17, 2003, complainant became aware that his annual
merit increase was only $3,107.00, which complainant believed was less
than he should have received.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that no genuine issue of material fact exists. The AJ
also concluded that complainant failed to establish a prima facie case
of discriminatory disparate treatment, by failing to demonstrate that
similarly situated employees not in complainant's protected classes were
treated differently regarding complainant's allegation that he was paid
less than other similarly situated employees. The AJ further concluded
that even if complainant had established a prima facie case, the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
The AJ noted that the agency had undergone a legitimate restructuring
and reduction in force which nationally eliminated executive positions
such as complainant's position as a PCES-1 Controller. The AJ also noted
that complainant had accepted and was placed in the position of Manager
of Finance, thereby receiving executive and administrative salary (EAS).
The AJ noted that the restructuring allowed complainant to maintain his
current salary and receive increases up to the maximum, which complainant
had attained. The AJ noted further that the agency had additional programs
which allowed exceptional employees a salary level beyond the salary
structure but that complainant failed to submit any evidence showing
that he qualifed for a higher level of pay based on such programs.
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. See 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, 322-323 (1986). A fact is "material"
if it has the potential to affect the outcome of a case. If a case can
only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The Commission finds that the grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's protected class.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 14, 2004
__________________
Date