Chon K. Xiong, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 10, 2010
0120092042 (E.E.O.C. Dec. 10, 2010)

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