01971908
05-14-1999
Don Limin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Don Limin, )
Appellant, )
) Appeal No. 01971908
v. ) Agency No. 4F-940-1045-95
) Hearing No. 370-97-2005X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (Filipino),
race (Asian), sex (male), and reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges he was discriminated against when:
(1) on November 14, 1994, he was scheduled for a fitness-for-duty (FFD)
examination; (2) on November 15, 1994, his locker was broken into; (3) on
November 16, 1994, he was instructed to talk to a supervisor (White male);
(4) on November 17, 1994, the station manager (Black male) accused him
of harassing a carrier; (5) on November 18, 1994, supervisors verbally
abused him in Spanish and disrupted his work; (6) on November 21, 1994,
he was informed about a sequence error, given an unfair evaluation for
a FFD examination and told he was a �time bomb�; (7) on November 23,
1994, his supervisor (Black female) yelled at him; (8) on November 26,
1994, his supervisor verbally insulted him; (9) on November 29, 1994,
the station manager asked him if he knew what a FFD examination was;
(10) on December 2, 1994, he was instructed to sign a postal form for
clocking out early; (11) on December 9, 1994 he was issued a letter
of suspension; and (12) on December 14, 1994, he was issued a letter of
demand. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a PS-06 Carrier Technician at the
agency's Mission Street Annex of the San Francisco, California, Post
Office, filed a formal EEO complaint with the agency on February 10,
1995, alleging that the agency had unlawfully discriminated against him
as referenced above. At the conclusion of the investigation, appellant
received a copy of the investigative report and requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended
Decision (RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
national origin, race and sex discrimination because he did not assert
that he was treated differently than similarly situated employees not
members of his protected classes. The AJ further found that appellant
failed to state a claim regarding most of the above-stated incidents,
as he did not demonstrate that actions (1) through (10) of the agency,
as stated above, had an adverse effect on the terms, conditions or
privileges of his employment.
The AJ also found that while appellant demonstrated a prima facie case of
reprisal discrimination regarding issuance of the letters of suspension
and demand, the agency articulated legitimate, nondiscriminatory reasons
for its actions, namely, that appellant failed to obey his supervisor's
order to undergo a FFD examination and the agency incurred expenses
as a result. The AJ found that appellant did not establish that the
agency's articulated reasons were a pretext to mask unlawful retaliation.
The agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
failed to establish a prima facie case of national origin, race or sex
discrimination. We also agree with the AJ's finding that the agency
articulated legitimate, nondiscriminatory reasons for issuing the letters
of suspension and demand, and appellant failed to demonstrate that more
likely than not, these reasons were pretextual. We thus discern no basis
to disturb the AJ's findings of no discrimination which were based on
a detailed assessment of the record. Therefore, after a careful review
of the record, and arguments and evidence not specifically addressed in
this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations