Sherman Kwong, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 16, 2009
0120091655 (E.E.O.C. Jul. 16, 2009)

0120091655

07-16-2009

Sherman Kwong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sherman Kwong,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091655

Agency No. 1F-941-0017-07

Hearing No. 550-007-00415X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 16, 2008 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.

Complainant claimed that the agency discriminated against him on the

bases of race (Asian), national origin (Chinese), and in reprisal for

prior EEO activity when:

(1) on January 9, 2007, he was escorted out of his work location by

Postal Police and was placed in an off-duty status without pay; and

(2) on January 23, 2007, he was placed in an off-duty status without

pay.1

Following the investigation into his formal complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ).

On December 4, 2008, the AJ issued a decision by summary judgment in

favor of the agency. On December 16, 2008, the agency fully implemented

the AJ's decision in its final action.

The AJ found that complainant did not show by a preponderance of the

evidence that he was discriminated against on the bases of race, national

origin and retaliation. The AJ further found that complainant did not

prove he was subjected to harassment sufficiently severe or pervasive

so as to render his work environment hostile.

Regarding claim (1), the AJ noted that complainant's supervisor (S1)

stated that on January 9, 2007, complainant did not respond to radio

requests for maintenance assistance. S1 further stated that he went to

the employees break room "where I found [complainant] playing cards at

one of the break room tables. I instructed [complainant] to accompany me

to the Automated Airline Assignment (AAA) area in which to perform his

scheduled assignment on the machines. [Complainant] then replied to me

'I'll be there when I get done playing my game!' I then requested again

[complainant] to accompany me to the (AAA) area to perform his work

assignment, to which he stated 'I'll be there when I get done with my

break!' Then I instructed [complainant] that this was a direct order,

and that I was not going to request again. [Complainant] replied 'and

I'm not going to tell you again, when I finish my game I'll be there!' in

a loud and aggressive voice." S1 stated that he then went to his office

and removed complainant from the clock and contacted the Postal Police

to have complainant removed from the facility under Article 16:7 of the

National Collective Bargaining Agreement "for becoming loud and aggressive

and failing to follow a direct order given by his supervisor."

Regarding claim (2), the AJ noted that S1 stated that upon complainant's

return to work on January 23, 2007, he sought to meet with him to

discuss administrative matters and complainant's work assignment,

but that complainant refused to meet with him. S1 further stated that

complainant "was never placed off of work. [Complainant] elected to go

home in his own regard because he did not like the work assignment that

was given to him for the tour."

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, 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.

Complainant has offered no persuasive arguments on appeal regarding the

AJ's decision to issue a decision without a hearing, or regarding the

AJ's findings on the merits. Therefore, after a review of the record

in its entirety, including consideration of all statements submitted

on appeal, it is the decision of the Equal Employment Opportunity

Commission to AFFIRM the agency's final action, because the Administrative

Judge's issuance of a decision without a hearing was appropriate and a

preponderance of the record evidence does not establish that unlawful

discrimination occurred.

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

July 16, 2009

__________________

Date

1 The January 9-17, 2007 off-duty status without pay identified in claim

(1) was resolved through the grievance process wherein complainant

received 40 hours of pay; and the January 23, 2007-February 7, 2007

off-duty status without pay identified in claim (2) was resolved through

the grievance process wherein complainant received 12 days of work and

two days of sixth days.

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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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