01A20049
03-17-2003
Yong Chi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yong Chi v. United States Postal Service
01A20049
03-17-03
.
Yong Chi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20049
Agency No. 1G-754-1092-96
Hearing No. 310-AO-5171X
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
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. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a LSM Clerk at the agency's Dallas,
Texas facility, filed a formal EEO complaint on April 3, 1996, alleging
that the agency had discriminated against her on the bases of race
(Asian), national origin (Korean), sex (female), disability (carpal
tunnel syndrome), and reprisal for prior EEO activity when on March 18,
1996, she received notification that her job was terminated.
The record reflects that as an LSM Clerk complainant's position required
her to watch the monitor for gate entrances and to notify her supervisor
of any abnormalities on the monitor. She was also required to perform
other assigned duties within her restrictions. The record reveals
that when complainant reported for duty on April 29, 1994, there was
no monitor for complainant to watch so she was asked to report to
the section that worked damaged mail. The duties in the damaged mail
section included placing damaged mail in a bag. The majority of the
workers in this section were on limited or light duty. The record
maintains that complainant objected to going to this section indicating,
that this was not her job. Complainant was told that since there was
no monitor that day she would be assigned to the damaged mail section.
Complainant reported to the section but it was noted that complainant
did very little work. When asked why she was not working, complainant
reported that her hands were hurting and that she wanted to go home.
Complainant left work on April 29, 1994 and did not return. In a letter
dated June 16, 1994, complainant was advised of her responsibility to
report to work and she was required to submit satisfactory evidence of
her continued incapacity for work. Complainant was also instructed to
contact her supervisor. She was told that her failure to respond could
result in disciplinary action up to and including removal. Complainant
failed to respond. Instead, she had her union representative send a
letter indicating that complainant was having a problem scheduling a
doctor's appointment and that for the last two weeks complainant was
to have scheduled leave and that she should be back at the end of her
annual leave. Complainant did not return. Two more absence inquiry
letters were sent to complainant and again complainant did not contact her
supervisor or submit documentation for her absence. On January 19, 1995,
complainant received a notice of removal for unsatisfactory services and
failure to follow postal service rules and regulations regarding leave
requests resulting in absence without official leave. Complainant filed
a grievance regarding the notice. On May 18, 1995, a hearing was held on
the grievance. The Arbitrator found that the agency had just cause to
issue the notice of removal. The arbitration gave complainant a recess
period of six months which terminated on November 8, 1995. During this
recess period, complainant maintained, in response to the agency's
request for information regarding her medical restrictions, that she
did not have to explain what her limitations were and that the agency
should continue to rely on the 1994 documentation that she provided.
On March 18, 1996, she received notification that her job was terminated.
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 race, national origin, and sex discrimination. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in complainant's protected classes were treated
differently under similar circumstances. The AJ found that employees not
in complainant's protected classes were also issued notices of discharge
for failure to submit documentation and unsatisfactory service. The AJ
also found that complainant did not establish a prima facie case of
reprisal and disability discrimination. The AJ found that with respect
to complainant's reprisal claim the evidence showed that complainant's
supervisor was unaware of her prior EEO complaint activity. The AJ
concluded that even if complainant were able to refute this fact, she
had shown no causal connection between her prior EEO activity and the
notice of removal. With respect to complainant's disability claim the
AJ found that a determination could not be made in this case because
complainant �obstinately refused� to provide documentation regarding
her limitations as was requested by her supervisor.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
The Commission agrees that complainant failed to establish a prima facie
case of discrimination based on race, sex, national origin and reprisal.
We find that complainant failed to show that others not of her protected
groups were treated more favorably. With respect to complainant's claim
of reprisal, we find that complainant did not show a nexus between
her prior EEO complaint activity and her removal from her position.
With respect to complainant's claim of disability discrimination we
note as a threshold matter, complainant must demonstrate that she is
an �individual with a disability,� which under the Rehabilitation Act,
is defined as one who: (1) has a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. EEOC Regulation 29 C.F.R. � 1630.2(g). Major
life activities include, but are not limited to, �functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.� EEOC Regulation 29 C.F.R. � 1630.2(i).
The Interpretive Guidance to the regulations further notes that �other
major life activities include, but are not limited to, sitting, standing,
lifting, [and] reaching.� 29 C.F.R. Part 1630 Appendix � 1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity, compared to the average person in the general
population. 29 C.F.R. � 1630.2(i). �An impairment is substantially
limiting if it lasts for more than several months and significantly
restricts the performance of one or more major life activities during
that time...In addition, some conditions may be long term, or potentially
long term, in that their duration is indefinite and unknowable or is
expected to be at least several months. Such conditions, if severe, may
constitute disabilities.� EEOC Enforcement Guidance on the Americans
With Disabilities Act and Psychiatric Disabilities (March 25, 1997)
at question 7.
For the purpose of this decision, we assume without finding that
complainant is an individual with a disability. Notwithstanding,
we find that complainant failed to establish a prima facie case of
disability discrimination. We find that complainant failed to show
that others not of her protected groups were not terminated when they
failed to follow postal regulations. Further, we find that the agency
articulated a legitimate, nondiscriminatory reason for its actions,
namely, that complainant was terminated because after several attempts
complainant �obstinately refused� to provide documentation regarding her
limitations as was requested by her supervisor. Finally, we find that
complainant failed to show that the agency's legitimate, nondiscriminatory
reasons were pretext for discrimination.
Therefore, after a careful review of the record, the Commission finds that
the granting 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. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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
_____03-17-03_____________
Date