0120061653
11-30-2007
Hsiu-Ling C. Horng, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hsiu-Ling C. Horng,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200616531
Agency No. 1C-276-0033-04
Hearing No. 140-2005-00171X
DECISION
Complainant filed an appeal from an agency's final action dated December
13, 2005, finding no discrimination with regard to her complaint.
In her complaint, filed on July 28, 2004, complainant, a Mail Processing
Clerk, PS-05, at the agency's Raleigh Processing and Distribution
Center in Raleigh, North Carolina, alleged discrimination based on race
(Chinese-American), color, national origin (Taiwanese), sex (female), age
(date of birth: 1-12-1961), disability (depression, anxiety, workplace
stress), and in reprisal for prior EEO activity when she was subjected
to harassment which created a hostile and abusive work environment in
that: (1) on June 4, 2004, she was issued a letter of warning for poor
performance; (2) she was assigned to work the DBCS machine by herself
while others had help; and, (3) she was held to a different standard
with respect to her work assignments and/or her terms and conditions of
employment.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On November 28, 2005, the AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the agency in its
final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged
incidents. Specifically, the AJ stated that although complainant was
assigned to a tough machine (i.e., machine number 12), there were other
machines that required more work (e.g., machine number 16). The AJ
also stated that the agency presented evidence that on the alleged
incident dates on June 4 and 7, 2004, complainant, along with other
employees, was assigned to work a machine without assistance. However,
complainant, unlike other employees, did not run her entire load which
resulted in missing her mail dispatch (leading to the letter of warning).
The AJ also found that the agency showed that complainant had as tough a
load as did other employees and that the assignments were comparable to
employees' training and work status. After a review, the AJ determined,
and we agree, that complainant failed to show by a preponderance of the
evidence that the agency's proffered reasons were pretextual.
With regard to the alleged harassment, the AJ noted that there was some
evidence that complainant and her supervisor had personality conflicts.
Complainant claimed that the supervisor made a comment that her native
clothing looked like a "Pizza Hut tablecloth." The supervisor denied
making that comment. Complainant also claimed that on one occasion,
the supervisor made a comment that she did not like yoga. The AJ
determined that the alleged incidents, including the supervisor's
comments, although they were unprofessional, did not rise to the level
of unlawful harassment. Complainant also claimed that she suffered
from stress and depression. The AJ stated that the record, however, was
void of any supportive medical documentation from complainant. The AJ
also stated that there was no evidence that complainant ever advised the
agency of her alleged disability or requested a reasonable accommodation.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
she was denied a reasonable accommodation or that any agency actions
were motivated by discrimination. Complainant also did not allege that
she was required to perform her duties beyond her medical restrictions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
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 tends 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
11/30/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120061653
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036