01A01175
04-11-2002
Gwen Huang, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gwen Huang v. United States Postal Service
01A01175
April 11, 2002
.
Gwen Huang,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01175
Agency No. 4F-945-0134-98
Hearing No. 370-97-X2673
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.
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 part-time Flexible Window Clerk,
PS-05 at the agency's Alameda, California facility, filed a formal EEO
complaint on April 1, 1998, alleging that the agency had discriminated
against her on the bases of race (Chinese), national origin (Asian)
and sex (female) when it issued a Notice of Removal on February 3,
1998 charging her with unsatisfactory work performance.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race, sex and national origin discrimination because subsequent
events had rendered her allegations regarding the February 3, 1998
Notice of Removal moot. Specifically, the AJ found that the union
and the agency agreed to withdraw and expunge the Notice of Removal
from complainant's record and to allow her to resign. In addition,
assuming arguendo that her allegations were not moot, the AJ found
that complainant failed to establish a prima facie case of race, sex
and national origin discrimination because she failed to identify any
similarly situated employees outside of her protected groups who were
treated more favorably under similar circumstances. 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.
Complainant does, however, continue to take issue with the AJ's reliance
on Flores v. Department of the Army, EEOC Appeal No.01831886 (December 28,
1983) for his conclusion that complainant's allegations are moot. As
we understand her argument, complainant contends that her case is
different than Flores because her sole motivation for resigning was
the agency's conduct which she regards as discriminatory. Since the
agency's conduct was tainted by discrimination, her resignation was
also tainted by discrimination. Moreover, according to complainant,
unlike the wrong in Flores, which was remedied when the agency expunged
the disciplinary memo, complainant's termination was not righted when
she resigned in face of the Notice of Removal.
The Commission need not reach the question of whether the Flores decision
controls the present situation because we find that dismissal on the
grounds that the claim was rendered moot would be improper. Although the
complainant, the union and the agency agreed to withdraw and expunge
the Notice of Removal from the complainant's record and to allow the
complainant to resign, complainant's complaint requests that she be made
whole, including reinstatement and reassignment to another facility.
Further, should complainant prevail on this claim, the possibility of an
award of compensatory damages exists. See Glover v. United States Postal
Service, EEOC Appeal No. 01930696 (December 9,1993). As the AJ has not
addressed the issue of compensatory damages, we find that dismissal
on the grounds that the claim was rendered moot would be improper.
See Rouston v. National Aeronautics and Space Administration, EEOC
Request No. 05970388 (March 18, 1999).
Complainant also takes issue with the AJ's finding that, even assuming
that her allegations are not moot, she has not established a prima facie
case because she has failed to identify any similarly situated employees
who were not in her protected groups who were treated more favorably than
complainant. Complainant does not dispute the AJ's finding that there
is a lack of comparators. Rather, complainant argues that the agency's
legitimate, nondiscriminatory reason is a pretext for discrimination.
In this regard, complainant argues that there is an inference of
discrimination based on complainant's protected status and evidence in the
record that she could do the job, namely testimony from three coworkers
who stated that on the occasions when they observed complainant, she
was performing her job and the complainant's demonstration during the
hearing that she was able to perform certain duties her supervisors
claimed that she could not.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary's Honor center v. Hicks, 509 U.S. 502 (1993).
The established order of analysis in discrimination cases, in which
the first step normally consists of determining the existence of a
prima facie case, need not be followed in all cases. Where as here, the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Thus, while complainant is correct in her assertion that the failure
to identify comparators is not necessarily fatal to the establishment
of a prima facie case, nonetheless, in the absence of comparators,
complainant must point to other acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. See Quinn v. Tennessee
Valley Authority, EEOC Appeal No. 01956441 (January 30, 1998).
Assuming complainant established a prima facie case, we find that
the agency articulated legitimate, nondiscriminatory reasons for its
action. Although the AJ heard testimony and reviewed evidence as to the
agency's articulated reason for its action, he did not reach the issue
of whether the agency's stated reason was a pretext for discrimination
because of complainant's inability to establish a prima facie case.
We note, however, that there is substantial evidence on the record to
support the agency's legitimate, nondiscriminatory reason for issuing
complainant the Notice of Removal. Complainant's supervisor, who
supervised her for five or six hours per day, testified that complainant
was incapable of doing the work that every PTF was required to do.
Another supervisor, who supervised complainant for the remaining two hours
of the day, also testified that she could not do the minimum amount of
labor required for her position.
Significantly, however, there is no evidence on the record to suggest
that the action taken against the complainant was in any manner related
to her race, sex or national origin, nor is there any evidence to link,
either directly or indirectly, the Notice of Removal to complainant's
protected status. Consequently, to the extent that complainant points
to evidence in the record which may arguably contradict the agency's
articulated legitimate, nondiscriminatory reason for its action, we
are not persuaded that such contradictory evidence raises an inference
of discrimination.
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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note that complainant failed to present evidence that the agency's
action was motivated by discriminatory animus toward complainant's
race, sex or national origin. We discern no basis to disturb the AJ's
ultimate determination. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm 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
April 11, 2002
__________________
Date