01a52930
07-12-2005
Alan Shih, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alan Shih v. United States Postal Service
01A52930
July 12, 2005
.
Alan Shih,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52930
Agency No. 1F-943-0012-03
Hearing No. 370-2005-0049X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he was
subjected to discrimination on the bases of race (Asian), national origin
(Chinese), and in reprisal for prior EEO activity when:
On January 31, 2003, complainant was issued a Letter of Warning -
Failure to Report for Required Overtime and Absent Without Permission.
2. On July 16, 2003, complainant was issued a 14-Day Suspension for
Physical Altercation with Postal Employee/Violation of Zero Tolerance
Policy-Assault.
3. On Unspecified Dates, complainant was issued two Letters of Warning
and Placed on Emergency Suspension.
On January 6, 2005, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut. The AJ also found that there was insufficient evidence to support
a claim of harassment or hostile work environment on the bases alleged in
this matter. On February 2, 2005, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that 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. 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.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. As to claim 1, the agency explained that
complainant was issued the January 31, 2003 Letter of Warning because
he failed to report for required overtime and he was the only employee
in his department who failed to report. Regarding claim 2, the agency
stated that complainant was suspended (for grabbing his supervisor's
arm) pursuant to the agency's "zero tolerance" policy for even single
incidents of threats within the workplace and in consideration of his
earlier Letters of Warning. With respect to claim 3, the agency stated
that in January 2004, complainant was issued two letters of warning for
using an unauthorized tool to perform a repair resulting in physical
injury to himself, and for his admittedly failing on two occasions to
obey direct orders of his supervisor and being suspended thereafter.<1>
The Commission finds that complainant has failed to rebut the agency's
articulated legitimate, nondiscriminatory reason for its actions.
Complainant has failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of race, national origin
or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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
July 12, 2005
__________________
Date
1The other Letters of Warning in this record received by complainant
were related to his failure to appear for work as scheduled in January
and March 2003. There is no indication that any of these Letters of
Warning were discriminatorily motivated.