01A33223
03-25-2000
Thuky T. Truong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Thuky T. Truong v. United States Postal Service
01A33223
March 25, 20004
.
Thuky T. Truong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01A33223
Agency No. 1B-021-0047-01
Hearing No. 160-A2-8418X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Full Time Clerk, PS-5, at the
Processing and Distribution Center, located in Boston, Massachusetts,
filed a formal EEO complaint on October 13, 2001, alleging that the
agency had discriminated against her and subjected her to harassment on
the bases of race (Asian), national origin (Vietnamese), sex (female),
age (D.O.B. 2/2/55), and reprisal for prior EEO activity when on July 17,
2001, she was �assaulted� by the Tour III Manager, Distribution Operations
(MDO).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of harassment based on race, national origin, age, and sex. Specifically,
the AJ found that viewing the facts in the light most favorable to
complainant, a reasonable fact-finder could not have concluded from the
evidence that management's action was motivated by her membership in any
protected class. The AJ also found that there is no evidence to support
a link either by time or circumstance between complainant's 1998 prior
EEO activity and the agency's action.
On appeal, complainant contends, among other things, that she established
a prima facie of harassment. Complainant contends that she was subject
to unwelcome conduct, the confrontation in the conference room between
the MDO and herself, which she alleges was based on her sex, age, race,
and national origin. Complainant also contends that it was a loud and
rude confrontation that had a detrimental effect on her. In response,
the agency requests that we affirm its final order.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting them, under a de
novo standard of review. 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 for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (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 issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
ANALYSIS AND FINDINGS
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
Based on the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), in order to prevail on a claim of harassment, complainant
must prove that: (1) she was subjected to harassment that was sufficiently
severe or pervasive to alter the terms or conditions of employment and
create an abusive or hostile work environment; and (2) the harassment was
based on her membership in a protected class. See EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc.,
at 3, 6; Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). The record reflects, through the testimonies of all
participants at the supervisor's meeting on July 17, 2001, that the
confrontation between complainant and the MDO concerned the subject of
employee discipline. The record reveals that the MDO asked complainant,
as an acting supervisor, whether she could discipline her employees if
warranted. In response, complainant questioned why she would need to
do so, said she would not do so, became very defensive, and complainant
and the MDO argued loudly. There is no evidence in the record to support
the conclusion that unlawful animus toward complainant's age, sex, race,
national origin or prior EEO activity motivated MDO's actions or words.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. The Commission therefore AFFIRMS the agency's final order.
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 25, 20004
__________________
Date