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