James Tam, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionMay 14, 2010
0120090244 (E.E.O.C. May. 14, 2010)

0120090244

05-14-2010

James Tam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


James Tam,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 0120090244

Hearing No. 520-2008-00172X

Agency No. 4B-020-0058-07

DECISION

On October 21, 2008, complainant filed an appeal from the agency's

September 24, 2008 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., and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed

timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final order.

ISSUES PRESENTED

The issues presented are whether the Administrative Judge properly

issued a decision without a hearing; and whether she properly found that

complainant had not been discriminated against as alleged.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Sales & Service Distribution Associate at the agency's Brighton,

Massachusetts Post Office. On September 27, 2007, complainant filed an

EEO complaint alleging that he was discriminated against and harassed on

the bases of race (Asian/Chinese), age (51), and in reprisal for prior

protected EEO activity arising under Title VII when:

1. on June 29, 2007, he was ordered to leave work after he refused to

accept the cash reserve drawer;

2. on July 2, 2007, he was issued a Letter of Warning (LOW);

3. on July 3, 2007, he was ordered to accept the cash reserve credit

drawer when there were other clerks who had cash shortage who were not

ordered to accept the cash reserve drawer; and

4. on July 24, 2007, he had to work beyond 8 hours because of a quick

count of his cash drawer.

In a letter dated October 15, 2007, the agency partially accepted

complainant's complaint for investigation. The agency dismissed six

issues for failure to state a claim in that complainant had not shown

that he was aggrieved within the meaning of 29 C.F.R. � 1614.107(a)(1).

Complainant did not object to the agency's dismissal of these claims at

the time of the letter of partial dismissal, in the hearings process,

or on appeal. Accordingly, we affirm the agency's dismissal of these

claims.

At the conclusion of the investigation, complainant was provided 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. The agency submitted a motion for a decision without

a hearing on May 8, 2008. Complainant did not submit any objection.

The AJ assigned to the case issued a decision without a hearing on

September 15, 2008.

In her decision, the AJ found that complainant's supervisor (MO-1)

attempted to assign the cash reserve drawer to complainant on the

morning of June 29, 2007. The cash reserve drawer is a drawer stocked

with $400.00 in cash of various denominations and is used to provide

each individual cashier window clerk with enough change to operate.

Responsibility for the drawer rotates among employees. MO-1 needed a

different employee to accept responsibility as the current employee in

charge of the drawer was scheduled to go on vacation. Complainant refused

to take responsibility for the drawer. MO-1 instructed him to clock out

for the day, however, complainant was still paid for 8 hours of work.

On July 2, 2007, MO-1 issued complainant an LOW for Failure to Follow

Instructions. On July 3, 2007, MO-1 again assigned complainant the

cash reserve drawer. On July 24, 2007, MO-1 conducted a "quick count"

of complainant's cash drawer, which complainant claimed had caused him

to work more than 8 hours. However, time records did not reflect that

complainant worked overtime, which meant that he worked less than an

extra 15 minutes.

The AJ concluded that complainant had not shown these reasons to

be untrue, and had not shown any linkage between his race, age or

previous EEO activity and the agency's actions. The AJ also concluded

that complainant had not established a claim of unlawful harassment in

that he had not shown how the agency's actions were sufficiently severe

or pervasive such that they altered the conditions of his employment.

Accordingly, the AJ entered a finding of no discrimination.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that he was subjected to discrimination

as alleged. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

Complainant did not submit any contentions in support of his appeal.

The agency submitted an argument in opposition to his appeal, in which

it argued that its final order implementing the AJ's decision should be

affirmed.

ANALYSIS AND FINDINGS

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 EEOC Management Directive 110, 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy

v. Department of the Army, EEOC Appeal No. 01A04099 (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 this case, we find that complainant has not shown that he was

discriminated against as alleged. Our independent review of the record

shows that, assuming complainant has established prima facie cases of

discrimination based on race, age and reprisal, the agency's articulated

reasons are supported by the evidence in the record. The record indicates

that it is one of the duties of a Sales & Service Distribution Associate

to keep the cash reserve drawer and that one employee must be assigned

it for each shift. As one employee on complainant's shift was about to

go on vacation, another was due to go on leave soon after, and a third

employee did not start the morning shift until later than complainant,

MO-1 decided that complainant should take the responsibility. The only

other employee available had suffered numerous shortages and overages

every month he had responsibility for the drawer. Complainant was

told to clock out and received the LOW for his failure to follow MO-1's

instructions regarding the cash reserve drawer. The agency presented

evidence that complainant only had to stay less than 15 minutes passed

his normal 8 hours on the day MO-1 did a "quick count" of drawer.

Complainant did not provide any evidence of discriminatory animus on

the part of the agency officials involved. Complainant did not submit

any argument on appeal, and so has not shown how the agency's reasons

may be pretext for discrimination.

Finally, to the extent that complainant also alleged that he was subjected

to a hostile work environment, we find, under the standards set forth in

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that complainant's

claim of hostile work environment must fail. See Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,

1994). A finding of a hostile work environment is precluded based on

our determination that complainant failed to establish that any of the

actions taken by the agency were motivated by discriminatory animus.

See Oakley v. United States Postal Service, EEOC Appeal No. 01982923

(September 21, 2000).

CONCLUSION

Based on a thorough review of the record and in absence of contentions

on appeal from complainant, we AFFIRM the agency's final order, which

implemented the AJ's finding that complainant was not discriminated

against as alleged.

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

___5/14/10_______________

Date

2

0120090244

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120090244