0520070913
11-28-2007
Jordan Yee, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, (Bureau of Prisons) Agency.
Jordan Yee,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
(Bureau of Prisons)
Agency.
Request No. 0520070913
Request No. 05200706501
Hearing No. 310-A0-5379X
Agency No. P990020
DECISION ON REQUEST TO RECONSIDER
Complainant timely requested reconsideration of the decision in Jordan Yee
v. Department of Justice (Bureau of Prisons), EEOC Appeal No. 0520070650
(July 17, 2007). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
For the foregoing reasons, the Commission reopens the previous decision
on our own motion, but affirms the decision in EEOC Request No. 0520060361
(March 30, 2007).
On April 27, 2007, complainant's attorney faxed and mailed a request to
reconsider EEOC Request No. 0520060361. On July 17, 2007, the Commission
dismissed complainant's request to reconsider on the grounds that it was
untimely filed. EEOC Appeal No. 0520070650. We reasoned that, since EEOC
Request No. 0520060361 was mailed on March 30, 2007, and complainant is
presumed to have received it on April 3, 2007, his request to reconsider
was due thirty days later on May 3, 2007. We then found that his request
was filed on June 8, 2007, well beyond the 30-day limitation period.
In the present request to reconsider, complainant presents evidence that
his request in EEOC Appeal No. 0520070650 was received by mail in the
Office of Federal Operations on May 1, 2007. Based upon this evidence, we
find that the Commission erred in its finding that complainant filed his
request to reconsider EEOC Request No. 0520060361 in an untimely manner.
We therefore reopen the previous decision on our own motion and review
complainant's request to reconsider EEOC Request No. 0520060361, where
the Commission affirmed an EEOC Administrative Judge's decision without
a hearing.
We now turn to the merits of complainant's request to reconsider EEOC
Request No. 0520060361. The record reflects that, on October 9, 1998,
complainant filed a complaint, claiming that the agency discriminated
against him on the basis of race/national origin (Asian/Chinese),
disability (stress, hypertension, Hepatitis B), and in reprisal for
prior EEO activity when, in August 1997, (a) he was harassed while he
was experiencing a medical emergency; and (b) he was charged eight hours
of sick leave on the day in question despite his having worked three
hours.2
Following the agency's investigation of his complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On July
22, 2003, the AJ issued a decision without a hearing, finding no
discrimination. In relevant part, the AJ found that complainant failed
to establish a prima facie case of race, national origin, or disability
discrimination or reprisal.
The agency concurred with the AJ's ultimate finding of no discrimination.
However, the agency found that complainant established a prima facie
case of discrimination based on disability and race/national origin.
Furthermore, it determined that complainant was not harassed or
subjected to a hostile work environment inasmuch as the agency's actions
were insufficiently severe or pervasive to constitute a hostile work
environment. With respect to the eight hours of sick leave, the agency
found that it appeared that "an honest mistake had been made regarding
complainant's sick leave usage," and that complainant failed to inform
the agency that he believed he had been charged incorrect sick leave.
The agency further found that it did not fail to accommodate him,
and that it articulated its reasons for its actions. Specifically,
management thought that complainant had been sleeping on the job.
Finally, the agency concluded that complainant did not show that
discriminatory animus was a factor. In EEOC Request No. 0520060361
(March 30, 2007), we affirmed the agency's decision, adopting the AJ's
finding of no discrimination.
In his brief for reconsideration of EEOC Request No. 0520060361,
complainant argues, among other things, that the Commission failed to
apply the standard for decisions issued without a hearing. Moreover, he
contends that the following issues are in dispute: the agency had never
written him up for sleeping on the job; the agency knew that complainant
had Chronic Hepatitis B; and a psychiatric nurse stated that he believed
that complainant was subjected to discrimination.
In a request to reconsider, a complainant is required to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b). "A request for reconsideration is not a second appeal to
the Commission." Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-17 (November 9, 1999).
At the outset, we note that 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.
After a careful review of the record, we find that the Commission
properly found that the AJ's issuance of a decision without a hearing was
appropriate because complainant has failed to show that a genuine issue
of material fact exists. Complainant alleges that the agency had never
written him up for sleeping on the job, and that the agency knew that
complainant had Chronic Hepatitis B. However, management testified that
on several occasions during the week they found him asleep in his office.
Assuming arguendo that complainant was not asleep, the record indicates
that management believed he was asleep, and as such, we do not find that
management's act of questioning complainant was unreasonable under the
circumstances. Moreover, even if the agency was aware of his condition,
inasmuch management sought information from complainant because they
believed he was asleep in his office, complainant has failed to show
discrimination. Complainant also contends that a psychiatric nurse
stated that he believed that complainant was subjected to discrimination.
However, a review of the psychiatric nurse's deposition reveals that
he did not express a belief that complainant was discriminated against
on one of the alleged bases, only that others appeared to lack patience
with complainant. For the foregoing reason, we concur with our previous
decision in EEOC Request No. 0520060361, finding that the AJ's issuance
of a decision without a hearing was appropriate in this case.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), but we open EEOC Appeal No. 0520070650 on our
own motion and review EEOC Request No. 0520060361 on the merits of the
claim. Nonetheless, based upon our review, EEOC Request No. 0520060361
remains the Commission's final decision. There is no further right
of administrative appeal on the decision of the Commission on this
request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_11/28/07_________________
Date
1 In EEOC Request No. 0520070650 (July 17, 2007), complainant
sought reconsideration of the Commission's decision in EEOC Request
No. 0520060361 (March 30, 2007). In EEOC Request No. 0520060361
(March 30, 2007), open'g, EEOC Appeal No. 01A40766 (April 19, 2004), the
Commission denied complainant's request to reconsider. However, therein
we reopened the case on our own motion, affirmed an EEOC Administrative
Judge's decision without a hearing, and provided complainant with the
"Right to Request Reconsideration" by the Commission.
2 Complainant initially raised five issues, but he withdrew or did not
pursue three issues, wherein he had claimed that his supervisor verbally
abused him; that he received a proposed removal (later rescinded);
and that he was accused of being late to work.
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0520070913
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520070913