0120070251
04-08-2009
Nuc T. Nguyen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nuc T. Nguyen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070251
Hearing No. 541-2006-00032X
Agency No. 4E-800-0230-05
DECISION
Complainant filed an appeal from the agency's final action dated August
28, 2006, finding no discrimination with regard to her complaint. In her
complaint, dated August 30, 2005, complainant alleged discrimination
based on national origin (Vietnamese), age (over 40), disability (back),
and in reprisal for prior EEO activity when on June 17, 2005, she was
harassed when she was taken off her bid job assignment and reassigned
as a rehabilitation employee from the Ken Caryl Post Office to the
Highlands Ranch Post Office in Littleton, Colorado and her beginning
tour was changed from 4 am to 3 am.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On August
23, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. 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 actions. The record indicates
that during the relevant time period, complainant was employed as a Review
Clerk, PS-6. The agency stated that as a Review Clerk, complainant was
required to perform distribution and nixie duties which included moving
equipment and mail from one place to another, sorting mail and placing
it into shelves, and lifting packages.
In 2002, due to her lumbar strain, complainant was provided with a
limited assignment working letters and flats since she could not lift
over 15 pounds. On June 5, 2004, complainant sustained a back injury
and was assigned to a limited duty assignment which included working
distribution of letters and flat for 3 hours; sitting and working
nixie mail for 4 hours; sitting and verifying NOVM for 30 minutes; and,
sitting and distributing at the carrier bar for 2 hours.
On June 9, 2005, the agency was notified of complainant's permanent
restrictions of 1 or 2 hours of fine manipulation and reaching above her
shoulder for 2 hours a day. The agency stated that complainant was no
longer able to work the upper two shelves in the distribution area or
carrier bar; she could not work 3 hours a day in distribution; and, she
could not move her nixie mail in u-carts to work her area. Management
indicated that until complainant's restrictions became permanent, other
employees helped her by lifting tubs and moving equipment for her.
Complainant clearly admits this on appeal. Management stated that
as complainant's restrictions became more limited, she could not even
perform the nixie job because she could not get the mail, move the mail,
or lift the mail. Management thus decided to reassign complainant to
Highlands Ranch Post Office because that facility had 3 nixie clerks
who could assist her. The agency stated that complainant's work hours
were changed so that she worked at the same time as the other clerks,
who could help lift the mail and move the equipment for her.
Assuming (without deciding) that complainant was an individual with
a disability, we find that complainant has not shown that the alleged
reassignment and her work hour change were in violation of her medical
restrictions. Upon review, we find that complainant failed to show that
she was denied a reasonable accommodation or that any agency actions
were motivated by discrimination. Despite her claim, we note that
complainant was not entitled to an accommodation of her choice, i.e.,
assigning another employee to help her pick up and move items for her job.
Furthermore, there is no evidence in the record to show that the agency
had a vacant funded position to which she might be assigned consistent
with her limitations at the Ken Caryl Post Office. With regard to her
claim of harassment, we find that complainant failed to establish the
severity of the conduct in question.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
4/8/09
__________________
Date
2
0120070251
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013