01990663
03-02-2001
Cecilia Chung, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cecilia Chung v. United States Postal Service
01990663
March 2, 2001
.
Cecilia Chung,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990663
Agency No. 1A119002597
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 the 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.
Complainant alleged that she was discriminated against on the bases of
race (Asian) and disability (perceived arm injury) when:
(1) on July 5, 1997, she was moved to the automation function of the
operation without consideration to her seniority;
on July 7, 14, 21, and 28, 1997, she was not allowed to work her sixth
day for overtime; and
on July 1, 9-11, 16-18, and 23-25, 1997, she was not allowed to work
overtime at the end of her tour.
The record reveals that during the relevant time, complainant was employed
as a manual distribution clerk at the agency's Western Nassau facility in
New York. Believing she was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on October 19,
1997. At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. When complainant
failed to respond within the time period specified in 29 C.F.R. � 1614,
the agency issued a final decision.
In its FAD, the agency concluded that complainant was not discriminated
against on the bases of race or disability (perceived). The FAD found
that complainant failed to show that she was an individual with a
disability within the meaning of the Rehabilitation Act, because the
record contained no evidence that complainant had a physical or mental
impairment which substantially limited her in a major life activity, or
had a record of or was regarded as having such an impairment. Moreover,
the FAD found that even assuming arguendo complainant is an individual
with a disability, the agency had proffered legitimate, non-discriminatory
reasons for its actions which complainant had not proven were a pretext
for discriminatory animus based on perceived disability. By so concluding,
the FAD noted that in response to complainant's request to be exempt from
working in automation, she was asked to provide medical documentation.
Once medical documentation was received, the FAD indicated that it was
honored for the limited purpose of insuring that she did not work beyond
prescribed limitations. The FAD found that complainant was not offered
overtime after she documented her need to be excused from working in
automation because working overtime generally meant working some, if
not most of the time in automation.
With respect to complainant's claim of race discrimination, the FAD found
that complainant failed to establish a prima facie case because she
failed to show that she was subjected to an adverse employment action,
and further failed to show that other similarly situated employees,
not of her protected group, were treated more favorably. The FAD noted
that complainant was offered opportunities to work overtime but declined
when automation was involved.
On appeal, complainant contends that on July 5 and 7, 1997, there were
workers present who had less seniority than she did and therefore they
should have been asked to work automation before she was. Complainant
also maintains that she was aware that when overtime was called, it was
possible that she could have been asked to work on automation machines,
but that it was not guaranteed, and that most of the time there were
junior regulars that could have been assigned that duty. The agency
requests that we affirm its FAD.
In deciding the instant appeal, we do not reach the issue of whether
or not the agency correctly determined that complainant was not an
individual with a disability under the Rehabilitation Act. Rather,
after a careful review of the record, we find that even assuming arguendo
complainant is an individual with a disability, she has not met her burden
of proof to establish discrimination by a preponderance of the evidence
on any basis. The record reveals that complainant's medical restrictions
specifically excused her from the automation machine because it caused
pain to her left side, and since most if not all of the overtime required
automation machine work, the agency was adhering to complainant's medical
restrictions by not assigning her this overtime work. The Commission
also does not find that complainant was discriminated against based on her
race because the record does not reveal that others not in complainant's
protected group were treated more favorably.<1> In fact, with respect
to complainant's claim that she was asked to work automation without
consideration to her seniority, the record reveals that the junior
employee was assigned to automation once the issue of seniority was
brought to the supervisor's attention. Further, the record also reveals
that during the relevant time, complainant received the second highest
amount of overtime in her workgroup.
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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").
_________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 2001
__________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________
Date
_________________________
Equal Employment Assistant
1While comparative evidence is usually used to establish disparate
treatment, complainant need only set forth some evidence of acts from
which, if otherwise unexplained, an inference of discrimination can
be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).