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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