0120061122
03-14-2008
Dzung N. Hoang, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dzung N. Hoang,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200611221
Agency No. 4F945000105
DECISION
On November 21, 2005, complainant filed an appeal from the agency's
October 21, 2005 final decision concerning her 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 decision.
At the time of events giving rise to this complaint, complainant worked as
a Distribution Window Clerk at the agency's Saratoga, California facility.
Complainant contacted an EEO Counselor and filed a formal EEO complaint
on February 7, 2005, alleging that she was discriminated against on
the bases of her national origin (Vietnamese), sex (female), disability
(post traumatic stress disorder; prolonged depressive disorder), and in
reprisal for prior protected EEO activity when:
1. she was sexually harassed by a co-worker (CW1) when on October
1, 2004, he showed her a photograph in a magazine of a woman performing
oral sex on a man;
2. on March 3, 2005, management constructively suspended her by
denying her request to return to duty;
3. on March 7, 2005, the office-in-charge (OIC) referred her
request to be separated from CW1 to the district reasonable accommodation
committee (DRAC), and the DRAC failed to return her to duty;
4. on an unspecified date, management violated the agency's sexual
harassment policy by refusing to separate her from CW1; and
5. management constructively terminated complainant's employment
by refusing to allow her to return to duty since October 2004.
Complainant later amended her complaint to include the following claims:
6. on March 8, 2005, management sent complainant a letter demanding
additional medical information;
7. on March 28, 2005, the agency controverted complainant's Office
of Workers' Compensation Programs claim;
8. on June 2, 2005, her supervisor (S1) threatened to place
complainant in AWOL status effective May 14, 2005;
9. on an unspecified date, S1 falsely stated that complainant
failed to return to duty or provide medical documentation supporting
her absence;
10. management failed to separate her from CW1 and failed to
accommodate her by refusing to return her to duty even after she complied
with all agency requests including the completion of a 21-day letter;
11. management constructively terminated complainant's employment
by refusing to allow her to return to duty after she made a complaint
of sexual harassment on October 1, 2004; and
12. on an unspecified date, management made a false statement
relating to complainant's cooperation with the agency's requests for
confidential medical information, and stated that complainant failed to
provide additional medical documentation to the DRAC.
The agency dismissed claims (6) - (12), pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim, and stating a claim that is
pending or has been decided by the agency. The agency investigated the
remaining claims, and at the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and notice of
her right to request a hearing before an EEOC Administrative Judge (AJ).
When complainant did not request a hearing within the time frame provided
in 29 C.F.R. � 1614.108(f), the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
she was subjected to discrimination as alleged. On appeal, complainant
contends that the agency's articulated reasons for its actions are not
worthy of belief. Complainant also contends that the agency improperly
dismissed her additional claims.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
ANALYSIS AND FINDINGS
Initially, we affirm the agency's dismissal of claims (6) - (12),
pursuant to 29 C.F.R. � 1614.107(a)(1). The regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim or states the same claim
that is pending before or has been decided by the agency. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age
or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy. Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). Here, the record reflects that with respect to (6), (10) and
(11), complainant is merely restating claims that are pending or have
been decided by the agency. The record also reflects that complainant
has not alleged a personal loss or harm regarding a term, condition or
privilege of her employment with respect to claims (7)-(9) and (12).
Accordingly, we affirm the agency's dismissal of these claims.
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of sexual harassment, complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to his gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex; (4) the harassment had the purpose or
effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In order to avoid liability for hostile environment sexual harassment,
the agency must show one of the following: (1) the acts or conduct
complained of did not occur; (2) the acts or conduct complained of were
not "unwelcome;" (3) the alleged harassment was not "sufficiently severe
or pervasive" to alter the conditions of the victim's employment and
create an abusive working environment; (4) immediate and appropriate
corrective action was taken as soon as the employer was put on notice;
and/or (5) there is no basis for imputing liability to the employer
under agency principles. Quintero v. United States Postal Service, EEOC
Appeal No. 01960836 (April 21, 1998). See also Meritor Savings Bank,
F.S.B. v. Vinson, 477 U.S. 57 (1986); EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
In the instant case, we find that complainant failed to establish a prima
facie case of sexual harassment. The Commission's regulations provide
that "[w]ith respect to conduct between fellow employees, an employer
is responsible for acts of sexual harassment in the workplace where
the employer (or its agents or supervisory employees) knows or should
have known of the conduct, unless it can show that it took immediate
and appropriate corrective action." 29 C.F.R. �1604.11(d). The record
in this case supports a finding that the agency took appropriate and
prompt remedial action to address complainant's concerns. Upon receipt
of complainant's sexual harassment charges on October 4, 2004, the
agency immediately conducted interviews with the alleged harasser and
all potential witnesses. (R.O.I., Exhibit 9-11; 15; 16). The record
also shows that although the agency attempted on numerous occasions to
interview complainant, in accordance with its sexual harassment policy,
complainant refused to provide any information or speak with any agency
employees. (R.O.I., Exhibit 19; 29). Further, complainant remained
out on leave from October 4, 2004, through June 28, 2005. (R.O.I.,
Exhibit 14). The record shows that even after her return to duty,
complainant refused to cooperate with the agency's attempts to conduct
an investigation into her sexual harassment allegations.
The record contains several letters from complainant's representative to
agency management alleging that complainant was willing to cooperate with
the investigation and return to duty, but was being prevented from doing
so by the actions of management officials. (Exhibit 19, 26; 34; 40; 48).
We find, however, that these letters contain numerous misstatements of
agency requests for information, and the record contains no evidence to
support complainant's claims of threats and intimidation by management
officials. Contrary to complainant's assertions, the record shows that
once it knew of the sexual harassment claim, the agency promptly took
action to investigate the claim but that complainant failed to cooperate.
As such, complainant failed to establish a prima facie case of sexual
harassment as the agency took prompt and remedial action once it was
put on notice of the coworker sexual harassment at issue in the instant
complaint.
Turning now to the issue of reasonable accommodation, under the
Commission's regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
Even assuming, for purposes of analysis only and without so finding,
that complainant is an individual with a disability as defined by the
Rehabilitation Act, when an individual's disability or need for reasonable
accommodation is not obvious, and he or she fails to provide reasonable
documentation requested by the employer, then the employer will not be
held liable for failure to provide the requested accommodation. EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the American with Disabilities Act, EEOC Notice No. 915.002 (October
17, 2002), Question 6. Here, the evidence shows that the DRAC contacted
complainant by letter in March and April 2005, requesting that she provide
medical documentation to support her accommodation request. The record
also shows that complainant failed to respond to the DRAC's requests.
The Injury Compensation Manager stated that as a result of complainant's
failure to engage in the interactive process, on May 16, 2005, the DRAC
closed complainant's accommodation request file. (R.O.I., Affidavit 4;
Exhibit 46; 52). Accordingly, we find that complainant has not shown
that the agency failed to provide her with a reasonable accommodation
in violation of the Rehabilitation Act.
Finally, with respect to complainant's claims that she was constructively
suspended in March 2005, and constructively terminated in October 2004,
we find that the record contains no evidence to support complainant's
contention that the agency prevented her from returning to duty. On the
contrary, the record shows that complainant was out on approved sick
leave from October 4, 2004, through February 2005. (R.O.I., Exhibit
14; 28). Complainant was cleared for work with restriction on March 3,
2005, however, due to lack of clarity regarding the specifics of the
restrictions, complainant's case was forwarded to the DRAC on March 7,
2005. (R.O.I., Exhibit 36-38). As discussed above, when contacted by the
DRAC for further medical information, complainant failed to respond and
remained off duty. Following the agency's attempts to obtain additional
medical documentation, complainant was again contacted by letter dated
June 2, 2005, informing complainant that because she had been absent
from duty from October 4, 2004, but had failed to document her continued
absence and had not returned to duty, she was being charged with absence
without leave from May 14, 2005. (R.O.I., Exhibit 47). The letter also
informed complainant of the actions she would need to take in order to be
cleared to return to duty, and the appropriate leave request forms she
should complete to request that her absences be charged as sick leave.
Id. We find that complainant has failed to proffer any evidence to
show that the agency unlawfully prevented her from returning to duty,
or constructively suspended or terminated her employment. Accordingly,
we affirm the FAD.
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
March 14, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120061122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036