01A33470
04-28-2004
Alice L. Liu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Alice L. Liu v. United States Postal Service
01A33470
April 28, 2004
.
Alice L. Liu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A33470
Agency No. 4F-940-0092-02
Hearing No. 370-A3-x2218
DECISION
Complainant timely initiated an appeal from the agency's final action
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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 action.
The record reveals that complainant was a City Letter Carrier, PS-05,
on limited duty at the agency's Embarcadero Postal Center, located in
San Francisco, California. She filed a formal EEO complaint on August
1, 2002, alleging that the agency discriminated against her on the
bases of race (Asian), national origin (Chinese), sex (female), color
(yellow), and disability (alleged impairment of right shoulder injury)
when, beginning on or about April 30, 2002, the reporting times under
her bid were changed, and her reporting times varied from day to day.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any of the alleged bases. Specifically, the
AJ found that complainant failed to demonstrate that similarly situated
employees not in complainant's protected classes were treated differently
under similar circumstances. The AJ found that the evidence showed that
unlike complainant, the two comparators cited by complainant were able to
perform the duties of their positions within their medical restrictions,
during the scheduled hours of their bids. The agency's final action
implemented the AJ's decision. Complainant makes no new contentions on
appeal, and the agency requests that we affirm its final action.
Assuming arguendo that complainant established a prima facie case of
discrimination with respect to all bases of discrimination alleged, we
find that the agency has articulated a legitimate, non-discriminatory
reason for changing and varying complainant's reporting times. According
to the agency, complainant's schedule was changed because she could not
perform all of her regular duties. By starting work at the altered times,
complainant was able to complete tasks that the agency needed completed,
and that were within complainant's medical restrictions. We find that
complainant has not shown that the reason articulated by the agency was
a pretext for unlawful discrimination, or that the agency's actions
were motivated by discriminatory animus towards any of complainant's
protected classes.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final action,
because the AJ's issuance of a decision without a hearing was appropriate,
see Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003), and a preponderance of the record evidence does not establish
that discrimination occurred.
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 28, 2004
__________________
Date