01973026
02-05-1999
Jeremiah Kim, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Jeremiah Kim, )
Appellant, )
) Appeal No. 01973026
v. ) Agency No. 1F-968-1006-96
) Hearing No. 370-96-X2768
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
(Korean-American), physical disability (heart attack), and mental
disability (nervous disorder), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges he was discriminated against when he was issued a
seven day suspension by his then supervisor (S1) on October 23, 1995.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a MS-4 Mail Handler at the agency's
Processing and Distribution Center, Honolulu, Hawaii, filed a formal EEO
complaint with the agency on January 15, 1996, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, appellant 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 initially observed that pursuant to a step 2 grievance
settlement dated December 15, 1995, appellant's suspension was reduced
to an official discussion. The AJ noted that pursuant to the union's
collective bargaining agreement with the agency, an official discussion
is not considered discipline, and on this basis, concluded that the
reduction of the suspension to a discussion rendered the underlying
issue moot because appellant no longer had been subjected to an adverse
employment action. See Douglas v. United States Postal Service, EEOC
Request No. 05950053 (April 18, 1996) (when a letter of warning is
reduced to a discussion, there is no longer a disciplinary action, and
an EEO complaint is properly dismissed as moot because a complainant
is no longer aggrieved). The AJ concluded, however, that appellant's
EEO complaint was not �entirely� moot because he alleged compensatory
damages in his complaint. See Glover v. United States Postal Service,
EEOC Appeal No. 01930696 (December 9, 1993). The AJ stated that in
order for appellant to demonstrate that he is entitled to compensatory
damages, he must prove that the agency discriminated against him based
on his national origin or disability status. The AJ then concluded that
appellant failed to establish a prima facie case of discrimination under
either basis because he failed to demonstrate that the agency took an
adverse action once the suspension was reduced to an official discussion.
The AJ then concluded that even if appellant had established a prima
facie case of discrimination, he failed to raise a genuine issue of
material fact demonstrating that the agency's actions were a pretext for
unlawful discrimination under either alleged basis. In reaching this
conclusion, the AJ noted that while it was suspicious that S1 decided to
issue the suspension four to five months after the events giving rise to
the suspension occurred, appellant never denied that the confrontations
for which he was issued the suspension actually took place. Thus, S1's
articulated reasons for issuing the letter of suspension, (that appellant
failed to follow instructions on May 6, 1995, and June 19, 1995, and
further, that on May 6, 1995, appellant used profane and abusive language
toward his supervisor), were never contested by appellant. To the
contrary, the AJ observed that appellant stated that the confrontations
were �inevitable� because S1 had repeatedly treated him poorly. The AJ
further noted that appellant failed to present evidence that similarly
situated employees not in his protected class were treated more favorably
under similar circumstances. See RD at page 10, footnote 3.
The AJ noted that appellant never alleged, and the record did not
demonstrate, that he was treated unfavorably because of his membership
in one or more protected classes. In reaching this conclusion, the AJ
recognized that while some of appellant's co-workers provided statements
that S1 did not treat appellant with respect, that S1 may have wanted to
remove all permanent light duty employees from her department, and that
some employees were �bigots,� none of the statements raised an inference
that the decision to issue the suspension was motivated by appellant's
national origin or disability, as appellant was not on permanent light
duty. The AJ inferred from the above-referenced statements that S1
generally treated many employees poorly, and that such treatment, while
unpleasant, was not rooted in discriminatory animus. The agency's FAD
adopted the AJ's RD. On appeal, appellant asks us to review the entire
record, 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 note, however, that the AJ's
conclusion that appellant failed to establish a prima facie case because
an official discussion does not constitute an adverse action is misplaced.
Here, the adverse action was S1's decision to issue appellant the letter
of suspension dated October 23, 1995, and the resulting allegation of
harm and concomitant request for compensatory damages resulting from
the issuance of the suspension letter. That the suspension was at some
future date reduced to an official discussion does not completely and
irrevocably eradicate the effects of the alleged violation, which in
this case was the issuance of the suspension letter. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979).
We also find that while appellant did not present evidence that similarly
situated employees outside his protected group were treated differently
under the same circumstances,<1> even assuming appellant had established
a prima facie case of discrimination, we agree with the AJ's conclusion
that appellant failed to present evidence that S1's decision to suspend
him was motivated by discriminatory animus toward his national origin
or his status as an individual with a disability.<2> We note that
while the timing of the suspension by S1, particularly when appellant
no longer worked for S1, is suspicious, that fact, without more,
does not establish that S1's decision to suspend him was motivated by
discriminatory animus. We discern no basis to disturb the AJ's ultimate
finding of no discrimination which was based on a detailed assessment of
the record. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD as CLARIFIED.
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:
February 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 We note that while
the record contains evidence that a co-worker of
appellant was issued only a letter of warning for
failure to follow instructions, this co-worker
is not similarly situated to appellant because
the warning letter did not indicate that he used
abusive and profane language.
2 We note that the AJ did not address whether or not appellant was a
qualified individual with a disability under the Rehabilitation Act.
While an initial determination as to whether appellant's physical
or mental impairments substantially limit a major life activity is a
prerequisite to establishing a prima facie case under the Rehabilitation
Act, we need not make such a determination on appeal because we agree
with the AJ's ultimate finding that appellant failed to demonstrate
that S1's reasons for issuing the suspension were more likely than not
motivated by discriminatory animus.