0120071554
04-01-2009
Hyokchun Chi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hyokchun Chi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071554
Hearing No. 380-2006-00081X
Agency No. 4E995000306
DECISION
On January 27, 2007, complainant filed an appeal from the agency's
December 14, 2006 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Fairbanks, Alaska facility.
On November 7, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Asian), national origin
(Korean), sex (male), physical disability, and in reprisal for prior
protected EEO activity when:
1. on September 13, 2005, he was advised that he would only be given
four hours of limited-duty work instead of extending him a modified job
offer within his medical restrictions; and
2. on January 4, 2006, he was subjected to harassment by co-workers
because of his disability and assignment to light-duty work, and
management failed to take corrective action.
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. On October 27, 2006, the agency filed a Motion for
Summary Judgment. On November 17, 2006, which was the date complainant's
response to the agency's Motion was due, complainant mailed the AJ a
request for extension of time. The AJ issued a decision in the case
on November 22, 2006. After mailing and faxing her decision, the AJ
received complainant's request for an extension of time. On November 24,
2006, the AJ denied complainant's request for an extension of time.
In her decision, the AJ found that complainant suffered an on-the-job
injury to his elbow and shoulder. Complainant received over $3,000.00 per
month as a schedule award for this injury from the Department of Labor.
After his injury, complainant worked for four hours, and then sat in the
training room for four hours, and did not do any work. In June 2005,
the agency gave complainant a modified job offer so that he could work
eight hours per day, but complainant declined the offer, claiming that
it involved tasks outside of his work restrictions. While the agency
consulted with the Department of Labor, the agency informed complainant
that he could continue the tasks he was able to do for four hours per
day but then he would need to take four hours of leave for the remaining
hours. In May 2006, the agency added duties so that complainant worked
for eight hours.
The AJ found complainant was not an individual with a disability because
he was not substantially limited in any major life activity. The AJ
also found that the agency articulated a legitimate, nondiscriminatory
reason for the four-hour job assignment; namely, that complainant
informed the agency that he could not do all the tasks described in the
June 2005 job offer, and there was no other work that he could perform.
As for the harassment claim, the AJ found no evidence that complainant
was subjected to severe or pervasive conduct because of his membership in
one or more protected class. The AJ found no evidence of a discriminatory
or retaliatory motive. Indeed, complainant was unable to establish that
management officials were aware of his prior EEO activity.
On December 14, 2006, the agency issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he never informed the agency that he
could not work more than four hours, and the agency improperly denied him
eight hours of work because of its erroneous belief that complainant
could not perform the duties of his position without being a direct
threat. Complainant argues that, in that regard, the agency failed to
establish complainant was a direct threat. Finally, complainant contends
that he was denied 15 days to respond to the agency's Motion for Summary
Judgment.
In response, the agency maintains that it did not consider complainant
a direct threat because it offered him a position for eight hours.
The agency argues that it was complainant and his physician who stated
that he could not perform the duties of the job. The agency contends
that it only limited complainant's hours when it determined that it did
not have enough work for complainant to do, and required him to take leave
instead of being paid for doing nothing for the remaining four hours.
The agency argues that complainant was afforded an appropriate amount
of time to respond to its Motion. In sum, the agency contends that its
final order 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).
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).
As an initial matter, we have considered complainant's arguments on
appeal regarding the timeliness of his response to the agency's Motion for
Summary Judgment, and are not persuaded thereby. Complainant was provided
adequate time in which to file a response, but he failed to do so.
After a careful review of the record, we find, assuming arguendo, that
complainant is an individual with a disability, that complainant failed
to present sufficient facts to establish that he was discriminated
against or retaliated against when the agency reduced his hours.
The agency provided complainant with a job description for eight hours
of work, but complainant and his physician stated that it did not meet
complainant's restrictions. Then the agency provided complainant with
four hours of work while they consulted with the Department of Labor,
because there was no other work for complainant to perform. As such,
complainant was required to take leave for the remaining four hours of
the workday. Complainant has not shown that, at the time of the events
in question, he was in fact qualified to work an eight-hour day.
Complainant has an evidentiary burden in cases such as this to establish
that it is more likely than not (preponderance of the evidence) that
there were vacancies during the relevant time period into which he could
have been reassigned. See Hampton v. United States Postal Service, EEOC
Appeal No. 01986308 (August 1, 2002). Complainant can establish that
vacant funded positions existed by (1) producing evidence of particular
vacancies; or (2) showing that he was qualified to perform a job or
jobs which existed at the agency, and there were trends or patterns of
turnover in the relevant jobs so as to make a vacancy likely during the
time period. Id.
Here, complainant has not introduced any evidence that there were jobs
available for which he was qualified that would allow him to work
for eight hours. We find that complainant did not present evidence
to dispute the agency's proffered reasons for its actions. Further,
complainant failed to present evidence of similarly-situated individuals
who were treated more favorably under similar circumstances, and failed to
produce any evidence of a discriminatory or retaliatory motive. We note
that there is no evidence that the responsible management officials were
aware of complainant's prior EEO activity.
We are likewise unpersuaded by complainant's direct threat argument.
The agency did not maintain complainant was a direct threat. It was
complainant who declined the available work.
As for his claim of harassment, complainant provided insufficient evidence
to establish that he was subjected to severe or pervasive conduct which
could constitute a hostile work environment, as he alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order.
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
April 1, 2009
Date
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0120071554
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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