0120072493
09-10-2007
David Shu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Shu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072493
Hearing No. 340200500502X
Agency No. 4F913000204
DECISION
On April 27, 2007, complainant timely filed an appeal from the agency's
March 30, 2007 final order (FAD) concerned complainant's EEO complaint
alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events giving rise to this complaint, complainant worked
as a Part-time Flexible City Carrier at the agency's Woodland Hills Post
Office facility in Woodland Hills, California. On January 31, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against and harassed on the bases of his national origin (Chinese),
disability (Chronic Lower Back Pain), age (D.O.B. 12/24/51), and in
reprisal for prior protected EEO activity when:
(1) on November 7, 2003, the agency issued him a Notice of Removal;
(2) on October 10, 2003, and October 18, 2003, agency employees
hand-delivered demanding letters and notes to his home; and
(3) on March 10, 2004, his former Postmaster (PM1) personally appeared
at his hearing for unemployment benefits.
The agency accepted and assigned the complaint for investigation. At the
conclusion of the investigation, complainant was provided with a copy
of the Report of Investigation (ROI) and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Subsequently, the agency requested that the AJ issue
a decision without a hearing on April 19, 2005. Complainant requested
supplemental discovery, and the AJ granted complainant's request.
Discovery concluded on January 24, 2006, and complainant responded to the
agency's request on February 6, 2006. Over complainant's objections, the
AJ granted the agency's April 19, 2005, motion for a decision without a
hearing and issued a decision without a hearing on September 26, 2006.
In his decision, the AJ found that complainant failed to establish a
prima facie case of disability discrimination. The AJ also found that
claim (3) constituted a collateral attack on the State of California's
unemployment benefits process and dismissed it for failing to state a
claim pursuant to 29 C.F.R. � 1614.107(a).
With regard to the harassment claim, the AJ found complainant failed to
establish a claim of harassment since he failed to show that the actions
were taken on the account of his national origin or age, or that PM1
made any bias statements. The AJ also noted that that the claim that
employees who do not normally deliver mail but hand-delivering mail to
complainant, alone is not a harassing act, and multiple requests for
medical documentation is not unlawful harassment.
As to claim (1), the AJ found that complainant failed to establish
a prima facie case of discrimination since he failed to submit any
comparators who were similarly situated to him. The AJ, however, found
that complainant established a prima facie case of retaliation. The AJ
also found that the agency provided a legitimate, nondiscriminatory reason
for removing complainant; namely that he failed to provide acceptable
medical documentation, failed to attend three investigatory interviews,
and was AWOL for 256 hours. The AJ found that complainant failed to
proffer evidence that the agency's reasoning for his removal was a pretext
of discrimination or retaliation. Accordingly, the AJ issued a decision
finding complainant was not subjected to discrimination or retaliation
as alleged. The agency subsequently issued a FAD on March 30, 2007,
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged.
On appeal, complainant first argues that he submitted medical
documentation. Complainant avers that he provided the agency with the
medical documentation that his doctor provided him, and argues that
any insufficiency in his medical documentation was the fault of his
doctor. Furthermore, complainant argues he was caught "in a catch-22
situation," because his doctor said, "it was illegal" to send the medical
documentation to the agency. Complainant alleges that the agency could
have waited to receive a full report and medical documentation from the
OWCP when his doctor submitted it as per OWCP procedures. Complainant
further alleges that the agency willfully deceived his doctor by denying
his doctor information regarding the OWCP contact information. He further
alleges that the agency harassed him by continually asking for medical
documentation, and sending supervisors to his house "to check on him."
The agency requests that we affirm its FAD.
Where an AJ has issued a decision without a hearing, we scrutinize the
AJ's legal and factual conclusions, and the FAD adopting them, de novo.
29 C.F.R. � 1614.405(a). The record indicates the following facts,
which we will consider in a light most favorable to complainant: on
September 18, 2003, complainant informed PM1 that he had work related
injuries, and PM1 required complainant to submit medical documentation
before giving him restrictions to his work load. On September 22, 2003,
complainant worked and suffered "excruciating" pain in his lower back.
On September 23, 2003, complainant saw his doctor, and received three
referrals for more tests. Complainant called and requested sick leave
on September 24 and 25, 2003. The agency granted the sick leave for
September 24, 25, and 26, 2003, but indicated that complainant had to
submit medical documentation for any further absences or he would be
listed as Absence Without Official Leave (AWOL). In a letter dated
September 30, 2003, the agency requested medical documentation from
complainant, and gave him five days to respond before taking actions to
remove him from the agency. Complainant then requested sick leave from
September 24, 2003 to October 17, 2003, which the agency denied because
he failed to provide acceptable documentation in support of his request.
Complainant was placed in an AWOL status beginning September 27, 2003.
Complainant also requested leave from October 20, 2003 to October 28,
2003, which the agency again denied because for lack of acceptable
documentation. Complainant filed a Federal Employee's Notice of Traumatic
Injury and Claim for Continuation of Pay/Compensation (CA-1) form to the
agency on October 20, 2003. Subsequently, two letters were hand-delivered
to complainant's house by two different agency employees on October 7,
2003, and October 18, 2003, requesting complainant's medical documentation
for his absences. Each letter also requested that complainant attend
investigative interviews, which were rescheduled. The agency employee
that hand-delivered the letter to complainant on October 7, 2003,
"placed the letter in [complainant's] mailbox." Subsequently, the agency
issued complainant a Notice of Removal on November 7, 2003 for failure
to provide medical documentation and for being AWOL. Complainant was
removed from the agency effective December 12, 2003. On March 10, 2004,
PM1 attended complainant's unemployment benefits hearing personally to
oppose complainant's claims.
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the record has been adequately developed. Furthermore, we find that
there are no genuine issues of material fact in dispute. Therefore,
we find the AJ appropriately issued a decision without a hearing.
With regard to claim (1), we note that in order to prevail in a disparate
treatment claim of national origin, age, disability discrimination and
retaliation, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley
v. Department of Veterans Affairs, EEOC Request No. 05950842 (November
13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
Even taking the facts in light most favorable to complainant and assuming
arguendo that he established a prima facie case of national origin, age,
and disability discrimination and retaliation, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
PM1 asked complainant numerous times to provide medical documentation
to support his absences, and complainant failed to submit sufficient
medical documentation or report to work. In order to establish that
the agency's reason for his removal was a pretext of discrimination,
complainant argues that he submitted medical documentation repeatedly.
Further, complainant argues that his doctor was responsible for the
medical documentation being incomplete, not him. Complainant also
argues that the agency willfully deceived him and his doctor by not
answering the doctor's repeated telephone calls. However, complainant
failed to proffer any evidence to show that the medical documentation he
submitted was sufficient, or that he was not AWOL as the agency stated.
Moreover, we note that complainant conceded that his medical documentation
was incomplete. As to complainant's assertions of willful deception,
complainant failed to proffer any evidence in the record to corroborate
his allegations. The agency stated PM1 received a telephone call from
the doctor's assistant requesting complainant's insurance information,
which the agency declined to provide. Complainant failed to offer any
evidence to otherwise rebut or call into question the veracity of the
agency's reason for removing him from his position.
With regard to claim (2), we find that, again assuming arguendo that
complainant established a prima facie case of age, national origin,
disability discrimination and retaliation, the agency articulated
legitimate, nondiscriminatory reasons for its actions. PM1 stated
that she sent two different employees on two separate occasions to
hand-deliver complainant letters because she "wanted to be certain that
the letters were delivered promptly." Furthermore, the agency stated
that complainant requested everything in writing, and the agency "was
not allowed to contact him by telephone." In order to establish that the
agency's proffered reasons were a pretext of discrimination, complainant
argues that hand-delivery of the letters was discriminatory because the
agency did not do the same to other employees. Also, complainant argues
that the agency's actions constituted harassment. We find, however,
that even taken the facts in the light most favorable to complainant,
he failed to proffer any evidence to refute the agency's reasoning for
such contact. Additionally, complainant does not dispute the agency's
statement that he asked for all contact to be in writing.
With regard to claim (3), the Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. Hannon v. Department of the Treasury, EEOC Request
No. 05A01149 (May 8, 2003); see Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998). We find that complainant's
allegation regarding PM1's presence at his unemployment benefits
hearing is a collateral attack against the California Unemployment
Benefits process. Accordingly, we affirm the determination that claim
(3) fails to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
As to complainant's claim for harassment, we find that, having
failed to establish that such actions were taken on the basis of his
membership in a protected class (since he failed to refute the legitimate,
nondiscriminatory reasons proffered by the agency), he failed to establish
that he was subjected to prohibited harassment. See Bennett v. Department
of the Navy, EEOC Request No. 05980746 (September 19, 2000); Applewhite
v. Equal Employment Opportunity Commission, EEOC Appeal No. 01994939
(April 6, 2000); Wolf v. United States Postal Service, EEOC Appeal
No. 01961559 (July 23, 1998).
Based on a thorough review of the record and the contentions on appeal,
we find that complainant failed to establish that genuine issues of
material fact existed, and therefore, the AJ properly issued a decision
without a hearing. Accordingly, we affirm the agency's FAD finding that
complainant was not discriminated against or subjected to harassment on
the bases of his national origin, age or disability or in retaliation
for prior EEO activity.
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
_____9/10/07_____________
Date
2
0120072493
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120072493