Meili Ng, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 6, 2008
0120061805 (E.E.O.C. Mar. 6, 2008)

0120061805

03-06-2008

Meili Ng, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Meili Ng,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200618051

Agency No. 1A-116-0013-04

Hearing No. 160-2005-00351X

DECISION

Complainant filed an appeal with this Commission from a December 19,

2005 agency decision which implemented the December 15, 2005 decision

of the EEOC Administrative Judge (AJ) finding no discrimination.

Complainant alleged that the agency discriminated against her on the

bases of race (Chinese) and sex (female) when: (1) from February 2002

through early 2004, she was subjected to a hostile work environment

by the Supervisor of Distributions Operations (SDO), her supervisor.

Complainant's claim was amended to include as allegation (2) the issue

of denial of official time to complainant's representative to prepare

a letter and for preparation for and attendance at mediation.

After the agency completed its investigation, complainant received the

Report of Investigation (ROI) and requested a hearing before an AJ.

Over the objection of complainant, the AJ issued a decision without a

hearing (summary judgment).

In her complaint, complainant alleged that the SDO harassed her sexually

with inappropriate touching, hugging, grabbing, holding, and making

suggestive comments about her looks, and also, following, watching,

and stalking her. She alleged also that the SDO treated other women

similarly, chasing women around as if it were a game. Complainant alleged

that the SDO used offensive language, especially the words "fuck" and

"bitch," engaged in name-calling, made threats, yelled, and screamed.

She alleged also that the SDO exhibited a disgust of Chinese workers and

stated that if he had the power, he would deport all foreigners to their

countries of birth. Complainant alleged that the SDO harassed Chinese

women because he felt that he could get away with it. She also alleged

that Chinese workers were intimidated because they did not want to lose

their jobs. Complainant stated that the SDO showed favoritism to some

women who kept him company by conversing, playing cards, scrabble and

poker games on the computer, and smoking with him.

Complainant also alleged in her complaint that the agency forced her to

work outside of her bid work area because of its unwillingness to change

the work environment so that she would be protected from the SDO.

Decision of the Administrative Judge

In his decision finding no discrimination, the AJ concluded that

complainant failed to show that she was subjected to harassment based

on her race or sex. In so concluding, the AJ noted that complainant

failed to present evidence sufficient for a fact-finder to conclude that

the SDO harassed her based on her sex or race during a two-year period

and that based on the record before him, he could not conclude that the

agency had discriminated against complainant.

The AJ identified statements contained in the ROI intended to support

complainant's allegation that the SDO harassed her and found that the

statements did not establish that complainant was subjected to unlawful

harassment based on sex. The AJ noted the statement of one employee

that the SDO liked to hug females and that when the females ran away,

the SDO chased them. The AJ found, however, that the employee did not

identify who the woman was who was hugged or whether the woman objected

to the hug. The AJ noted that the employee provided no factual details

about the incident and determined that the statement suggested that the

incident was nothing more than horseplay on the part of the participants.

The AJ noted also that the employee's statements that the SDO wanted

to make the workplace a playground, that the SDO yelled at employees,

and that the SDO made every employee nervous lacked the indicia that

the SDO's actions were sex-based.

The AJ also referenced another statement from an employee in which the

employee stated that the SDO took a female employee's hand and kissed it,

after which the employee removed her hand and walked into the storage

room next to the SDO's desk. The AJ found that there was no indication

that the employee who gave the statement had personal knowledge of the

incident, that complainant witnessed the incident, or that the female

employee objected to the incident.

The AJ addressed another incident in which the same employee reported

that she saw the SDO chase a female employee into the ladies' room and

saw him standing beside another female employee holding her hand while

she was sitting in front of her computer. The AJ noted that another

employee provided a different version of the incident and stated that

the SDO moved both of his hands up and down the female employee's back.

The AJ also referenced an incident in which the same employee who stated

that she saw the SDO kissing an employee and chasing a woman into the

ladies' room also stated that the SDO put his right arm around her when he

questioned her about performing an assignment the next day and she walked

away from him. The AJ noted that the employee stated that three months

later the SDO assigned her as the only dispatcher to work a letter case.

The AJ found no evidence that complainant witnessed the incidents.

The AJ noted that although complainant claimed that the SDO had touched

her on a number of occasions, complainant gave only the vaguest details as

to dates and the nature of the touching thereby creating little basis for

drawing an inference that the touching was of a sexual nature. He noted

also that complainant had only the slightest recollection about any

physical contact which occurred in 2002 or 2003. The AJ found that none

of the statements by witnesses indicated that the SDO touched complainant

despite complainant's allegations that the SDO had touched her publicly.

The AJ found that even if all of complainant's evidence were credited

as true, the evidence was insufficient to establish a hostile work

environment based on sex, noting that the alleged physical contact

was vaguely described by complainant; was infrequent, having allegedly

occurred during a two-year period; and did not appear to have been related

to complainant's sex. The AJ also found that even if the conduct were

related to sex, it was not severe, physically threatening or humiliating,

and did not rise to a severe or pervasive level. He found further

that complainant had not shown sufficiently that the SDO's conduct was

unwelcome and that complainant failed to show that the SDO's conduct

had the purpose or effect of unreasonably interfering with her work

performance and/or creating a hostile work environment.

Regarding race, the AJ noted that although the complainant had alleged

that the SDO had once said that if he had the power, he would deport all

foreigners back to their birth countries, complainant had not shown a

nexus between the "stray comment" and any concrete action, even had the

AJ assumed that the SDO had made the remark. The AJ also found that when

the SDO told complainant that he did not want her in the Registry unit,

complainant had not shown that this action was motivated by complainant's

sex or race. The AJ found that while co-workers alleged that the SDO

disfavored Asians in the workplace, there was insufficient evidence that

he disfavored complainant based on her race.

Record Evidence

In her affidavit, complainant stated that many of the employees that

the SDO supervised were Chinese. Complainant stated further that the

SDO had a hatred for Chinese and treated female Chinese employees with

disrespect because he believed that the Chinese women were afraid to

complain and feared losing their jobs. She stated that the union had

collected statements from other employees who were subjected to harassment

by the SDO. Complainant also stated that the SDO used vulgar language and

engaged in name calling, using such words as "fucking bitch." She stated

that when she told the SDO to stop touching her and to leave her alone,

he would become mad and yell and scream at her. Complainant also stated

that the SDO came up to her from behind and held her in a bear hug and

that she had to push very hard for him to let her go. She stated that

since the incident, she has tried to stay out of the SDO's way.

Complainant stated in her affidavit that she had gone to the union

to complain, that management was aware of the SDO's actions, and that

other employees had filed complaints against the SDO. In her affidavit,

she identified by name other employees whom she alleged were harassed by

the SDO. Complainant stated that the SDO may have been removed from other

positions because of racial and sexual harassment. She indicated that

the SDO's harassment had persisted unabated for so long that employees

had given up on management ever taking action.

Complainant stated in her affidavit and a separate statement that because

of the SDO, management placed her in another section away from him but

that section was not her bid. She stated that work in the new section

was heavier than her bid but that she had no choice. She also stated

that she lost overtime pay in the new section.

The record also contains the affidavit of the SDO. He denied that he

yelled at complainant on December 26, 2003. Asked whether he had ever

touched complainant's arm, shoulder, or hair, the SDO stated that the

area he supervised was very congested and he may have touched complainant

in passing. He stated that he could not recall making a statement about

deporting foreigners. The SDO also denied calling complainant or any

other female a "fucking bitch" or using offensive language. He denied

that he was previously accused of sexual harassment.

The record contains the affidavit of the Manager of Distribution

Operations (MDO). He stated that the SDO had been disciplined for

using abusive language for the December 2003 incident and had been

disciplined before for inappropriate behavior. The MDO also stated

that he was not aware of any claims of sexual harassment brought against

the SDO. He stated further that the SDO had had one or two complaints

of harassment brought against him but that the claims were either dropped

or not proven.

An April 13, 2004 Proposed Letter of Warning (LOW) in Lieu of Seven-Day

Suspension issued to the SDO with regard to the December 26, 2003

incident in which complainant stated that the SDO had yelled, cursed,

and screamed at her publicly and that she was in such distress that she

had to be taken by ambulance to a hospital. The Proposed LOW reflects

that an investigation was conducted concerning the incident and that

written statements by employees corroborated verbal abuse by the SDO,

his cursing and using words such as "fuck, fuck you, mother-fucking,

bullshit" and, also, that the employees felt that they were working in

a very hostile work environment caused by the SDO's behavior.

The record also contains a petition containing signatures of employees

concerning the incident which occurred on December 26, 2003, and several

statements from co-workers concerning the environment at work.

Findings and Analysis

The Commission's regulations allow an AJ to issue a decision without

a hearing when the AJ 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.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

In order to establish a claim of harassment, complainant must show that:

(1) she is a member of the statutorily protected class; (2) she was

subjected to harassment in the form of unwelcome verbal or physical

conduct involving the protected class; (3) the harassment complained

of was based on the protected class; and (4) the harassment affected

a term or condition of employment and/or had the purpose or effect of

unreasonably interfering with file work environment and/or creating

an intimidating, hostile, or offensive work environment. See Humphrey

v. United States Postal Service, EEOC Appeal No. 01965238 (October 16,

1998); 29 C.F.R. � 1604.11. In the case of harassment by a supervisor,

complainant must also show that there is a basis for imputing liability

to the employer.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. See also Oncale v. Sundowner Offshore Services, Inc.,

23 U.S. 75 (1998). The Court explained that an "objectively hostile or

abusive work environment [is created when] a reasonable person would find

[it] hostile or abusive:" and the complainant subjectively perceives

it as such. Harris, supra, at 21-22; Enforcement Guidance on Harris

v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

Where a complaint does not challenge an agency action or inaction

regarding a specific term, condition or privilege of employment, a claim

of harassment is actionable only if the alleged harassment to which

the complainant was subjected is sufficiently severe or pervasive to

alter the conditions of the complainant's employment. A single incident

or group of isolated incidents will not be regarded as discriminatory

harassment unless the conduct is severe. Walker v. Ford Motor Co., 684

F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently

severe to trigger a violation must be determined by looking at all the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, or

a mere offensive utterance, and whether it unreasonably interferes with

an employee's work performance. Harris, supra, at 23.

Because this is an appeal from a decision issued without a hearing,

pursuant to 29 C.F.R. � 1614.110(b), the decision is subject to a de

novo review by the Commission. See 29 C.F.R. � 1614.405(a).

The Commission notes that the hearing process is intended to be an

extension of the investigative process, designed to "ensure that the

parties have a fair and reasonable opportunity to explain and supplement

the record and to examine and cross-examine witnesses." See EEOC

Management Directive (MD) 110, November 9, 1999, Chapter 7, page 7-1.

"Truncation of this process while material facts are still in dispute

and the credibility of witnesses is still ripe for challenge, improperly

deprives complainant of a full and fair investigation of her claims."

Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575

(March 26, 1998).

The Commission finds that genuine issues of material fact exist regarding

the severity and pervasiveness of the alleged harassment against women

in general, and against Chinese/Asian women in particular and issues

regarding credibility. There are numerous examples of alleged hostility

in the workplace. Unsworn statements, contradicted and disputed by the

SDO and the MDO, reflect the alleged hostility toward women.2 The women

described their workplace as burdensome and unbearable. A male employee

stated that he could no longer stand by and watch as "these hard working

people are suffering" due to the SDO's alleged behavior. When viewed

together, along with allegations of belittling, use of harsh language,

unwelcome touching and intimidation, we find that a genuine issue of

material fact exists regarding whether complainant was subjected to a

hostile work environment for discriminatory reasons. Regarding the AJ's

conclusion that there was no sex or race discrimination, the Commission

finds that, under the circumstances of this case, this conclusion could

not be reached except by resolving conflicting evidence, an action that

is not appropriate in a grant of summary judgment.

A grant of summary judgment is also not proper because there is

conflicting evidence concerning why complainant changed her work areas

and had to work another bid position which she stated gave her less

overtime and was harder. Although complainant stated that she was

forced from her bid position, the MDO's statement is at variance with

complainant's statement.

The Commission also takes note that complainant stated that she was

not comfortable in using spoken English.3 During her deposition,

complainant stated that she did not know English and that her English was

not too good. No interpreter was provided for complainant. Without being

able to observe complainant or having a sufficient investigative record,

a fact-finder would be unable to determine whether the AJ's conclusion

that complainant's answers were vague was attributable to complainant's

alleged discomfort in use and understanding of the English language.

Accordingly, the Commission finds that this case cannot be decided without

weighing conflicting evidence on the existence of a discriminatorily

hostile workplace and without addressing credibility issues. The courts

have been clear that summary judgment is not to be used as a "trial

by affidavit." Redman v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975).

Therefore, we shall remand the matter for a hearing.

As a final matter, the Commission notes that the AJ failed to address

the issue of the agency's alleged failure to grant complainant's

representative a reasonable amount of official time. EEOC Regulation 29

C.F.R. � 1614.605(b) provides that if a complainant in the EEO process is

an employee of the agency and designates another agency employee as the

complainant's representative, then the agency will give complainant's

representative a reasonable amount of official time to prepare the

complaint and to respond to the agency's and EEOC's requests for

information.

The Commission has held that the right to official time for a

representative flows from the complainant being represented and,

therefore, a denial of official time for a representative is properly

raised by complainant. See Lambert v. Social Security Administration,

EEOC Request No. 05970586 (October 8, 1988). The Commission has also

stated that an allegation pertaining to the denial of official time states

a separately processable claim alleging a violation of the Commission's

regulations, without requiring a determination of whether the action

was motivated by discrimination. See Edwards v. United States Postal

Service, EEOC Request No. 05960179 (December 23, 1996). The Commission

has held that it has the authority to remedy a violation of 29 C.F.R. �

1614.605(b) without a finding of discrimination. Id. Accordingly, the

AJ should have addressed the issue of official time, but did not do so.

The AJ, in his or her new decision, shall adjudicate this denial of

official time claim along with the hostile work environment claim.

The agency's decision finding no discrimination is VACATED and this

matter is REMANDED for hearing in accordance with this decision and the

Order herein.

ORDER

The agency shall submit to the Hearings Unit of the EEOC's New York

District Office the request for a hearing within 15 calendar days of the

date this decision becomes final. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within 15 calendar

days of the date this decision becomes final. The agency shall provide

written notification to the Compliance Officer at the address set forth

below that the complaint file has been transmitted to the Hearings Unit.

Thereafter, the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 6, 2008

__________________

Date

1 Due to a new data system, this appeal has been re-designated with the

above-referenced appeal number.

2 The investigator did not interview any employee who stated that the

workplace was hostile. The investigator provided no reason why those

persons were not interviewed or their affidavits not taken.

3 In her response to the motion for summary judgment, complainant stated

that she was not comfortable in using the English language and noted

that during the course of her deposition by the agency, she became so

upset that she was crying and curled up into a ball.

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0120061805

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036