0120092042
12-10-2010
Chon K. Xiong, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Chon K. Xiong,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120092042
Hearing No. 480-2009-00131X
Agency No. 4F-956-0103-08
DECISION
On April 4, 2009, Complainant filed an appeal from the Agency’s February
27, 2009, final order concerning his equal employment opportunity (EEO)
complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. §�
�1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.
ISSUES PRESENTED
The issue presented on appeal are (1) whether the EEOC Administrative
Judge (AJ) properly issued a decision without a hearing in this matter;
and (2) whether Complainant demonstrated that he was subjected to
discrimination because of his race, color, national origin, and/or in
retaliation for prior EEO activity when his position was abolished and
when he was not compensated for the gasoline used in his private vehicle.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Window Clerk although his official title was Sales,
Services/Distribution Clerk at both the Cedar Station and the Calwa
Stations in Fresno, California. Complainant’s job was abolished on
or about March 10, 2008, as part of a restructuring plan at a number of
Fresno stations. The Fresno Customer Services District began considering
the restructure of the clerk staff in August 2007. A workload analysis
was done at the Calwa Station and it was determined that only 1.5 people
were needed. Complainant had less seniority than the other clerks at
the Calwa Station so his position was abolished.
Complainant also maintained that he was not compensated for the gasoline
used in his private vehicle as a result of his need to move between
stations. The Agency indicated that Complainant was told to fill
out an eTravel voucher in order to get reimbursed but he never did.
Complainant was also given the option of receiving a ride from one
station to the other but declined the Agency’s offer.
On July 2, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (Asian),
national origin (Asian), color (Brown), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when his
position was abolished and when he was not compensated for the gasoline
used in his private vehicle.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. After both parties submitted motions for a
decision without a hearing, the AJ assigned to the case issued a decision
without a hearing on February 18, 2009. The Agency subsequently issued
a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision
on an appeal from an Agency’s final action shall be based on a de
novo review . . .”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9,
1999) (providing that an administrative judge’s “decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will
be reviewed de novo”). This essentially means that we should look at
this case with fresh eyes. In other words, we are free to accept (if
accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, § VI.A. (explaining that the de novo standard
of review “requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment
of the record and its interpretation of the law”).
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to a
motion for a decision without a hearing). In the instant case, we find
that all procedural prerequisites have been met and that there are no
material issues in dispute; therefore, we find that it was appropriate
for the AJ to have issued a decision without a hearing on this record.
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has
established a prima facie case, the burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is his obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715-16 (1983).
Following the three-part scheme of McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973), for analysis of claims of disparate treatment based
on reprisal, Complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (December 6, 1996). Specifically,
in a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, supra, to establish a prima facie case of reprisal,
he must show: (1) he engaged in a prior protected activity; (2) the
official acting on behalf of the agency was aware of the protected
activity; (3) he was subjected to adverse treatment by the agency; and
(4) a nexus, or causal connection, exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
In the instant case, the Commission finds that based on the evidence
Complainant failed to prove that he was subjected to discrimination.
The Commission finds that, even if we assume for the sake of argument
that Complainant established a prima facie case of discrimination as
to all bases, we also find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Agency
explained that the clerk staff was restructured in several Fresno stations
and because Complainant had less seniority, his job was abolished.
The Agency maintained that the collective bargaining agreement required
that the employees with the least amount of seniority would be removed
from their positions first and Complainant was one of fifteen other
employees who fell within that category. To show that the Agency’s
reasons were pretext for discrimination, Complainant argued that there
were purported violations of the collective bargaining agreement, and that
the Agency’s decisions were unfair and/or operationally inefficient.
Accepting these assertions as true, however, does not establish pretext
or discriminatory animus.
Further, with respect to Complainant’s assertions regarding not getting
paid for the gasoline that he used when using his own vehicle to travel
between stations, the Agency explained that Complainant did not fill
out an eTravel voucher so that the gas money could be deposited into his
bank account. To show pretext Complainant argued that he was told by his
manager that she would set him up with eTravel but that she never did,
even though he asked about it several times. The Agency indicated that
assuming Complainant was correct and the manager failed to sign him up
for eTravel, the fact remained that the Complainant did not offer any
evidence which one could infer that the reasons the manager did not sign
Complainant up for eTravel was because of his protected bases. We find
that that Complainant failed to provide any evidence which suggests that
discriminatory animus was considered with regard to any of the issues
in this case and that he failed to show that the Agency’s articulated
legitimate, nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s FAD
finding no discriminaton.
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
__12/10/10________________
Date
2
0120092042
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092042