01a55909
05-12-2006
Cindy Xiao, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cindy Xiao v. United States Postal Service
01A55909
May 12, 2006
.
Cindy Xiao,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55909
Agency No. 4F-913-0173-03
Hearing No. 340-2004-00092X
DECISION
Complainant timely initiated an appeal from the agency's final order
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 record reveals that complainant, a Letter Carrier at the agency's
Glendale, California facility, filed a formal EEO complaint alleging
that the agency discriminated against her on the bases of race (Asian),
sex (female), color (yellow), disability (back) and reprisal for prior
EEO activity when:
On December 27, 2002, complainant was issued a Notice of 7-Day "No
Time Off
Suspension;�
Complainant's work hours were reduced on or about February 15, 2003;
Complainant was denied an interpreter for a grievance meeting on or
about March 12, 2003; and
Complainant was yelled at and told to leave the building on October
1, 2003.
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 retaliation. Although the AJ noted that complainant engaged in
previous protected EEO activity she found complainant failed to show that
she was subject to an adverse action by the agency. The AJ noted that as
a result of the grievance process, the disciplinary action taken against
complainant was removed from her record and her punishment reduced to a
reminder to drive carefully. Further, with regard to the incident on
October 1, 2003, the AJ found this also did not result in any adverse
action for complainant. The AJ noted that after the confrontation in the
parking lot, complainant was allowed to go back and work the rest of the
day. The AJ recognized that complainant also asserted that she is being
retaliated against because she did not lie to the Postmaster on behalf
of her old supervisor. The AJ stated that even if that were true, she
would have no claim here because only protected EEO activity can be the
basis for a claim of retaliation. Thus, the AJ concluded complainant was
not discriminated against based on her previous protected EEO activity.
In addressing her claim of the suspension, the AJ found complainant did
not establish a prima facie case of discrimination based on race, color
or sex. The AJ found complainant did not demonstrate that she was treated
differently from others that were similarly situated when she received
a Notice of 7-Day "No Time Off Suspension" for unnecessary backing
up of her vehicle. The AJ noted that the agency provided comparative
information demonstrating that employees outside of complainant's race,
color and sex were given the discipline of a 7-Day Suspension for poor
driving on duty. Further, the AJ noted that complainant's suspension
was reduced to a discussion and removed from her record as a result of
a subsequent settlement.
With regard to the agency's failure to provide an interpreter during
the grievance process, the AJ found complainant did establish a prima
facie case for discrimination. The AJ noted that complainant is Asian,
that complainant requested an interpreter, and that she was not provided
with an interpreter. However, the AJ found the agency articulated a
legitimate, non-discriminatory reason for failing to provide complainant
with an interpreter. The AJ noted that both the Manager of Customer
Services and the Supervisor of Customer Services stated that complainant
was denied an interpreter on the advice of Labor Relations. The AJ found
complainant did not present any evidence that the articulated reason
is merely a pretext for discrimination. The AJ recognized there is no
evidence of other employees who have been provided interpreters during the
grievance process. Thus, the AJ did not find the denial of an interpreter
was an act of discrimination toward complainant. Additionally, the
AJ stated that the decision to deny complainant an interpreter did not
result in any harm since the Union President accompanied complainant to
the meeting and the discipline at issue in the proceeding was ultimately
reduced to a discussion on the importance of safe driving.
With regard to complainant's harassment claim, the AJ found that
complainant has not demonstrated that the actions of the Manager
of Customer Services and the Supervisor of Customer Services were
sufficiently severe or pervasive enough to establish the prima facie case
for a hostile work environment. The AJ noted that while the incident in
the parking lot was upsetting to complainant, she was able to go back
and work the rest of the day. The AJ found complainant was not harassed
based on her sex.
With regard to her disability claim, the AJ noted that complainant's
doctor stated that with physical therapy, her injury would be
substantially improved in three months, with recovery possibly taking
longer. The AJ found no indication that complainant's injury is
permanent and concluded she did not establish that she was disabled.
Nevertheless, the AJ stated that assuming complainant's injury is
permanent and that she is unable to perform the essential functions of
her job, she also must demonstrate that the agency failed to provide
reasonable accommodation for her disability. The AJ noted that in
March 2003, complainant requested that her duties be changed from that
of a mail carrier to office work to accommodate her disability. The AJ
noted that complainant was given a light schedule of twelve hours of
light duty per week. The AJ also noted that the Manager of Customer
Services and the Supervisor of Customer Services asserted they provided
accommodations due to complainant's restrictions. The AJ noted that
because complainant was not able to perform the essential functions
of her job, work within her medical restrictions was provided to her
as it was available. Further, the AJ noted that complainant's doctor
restricted her hours to six hours a day, three days a week and recognized
that in May 2003, complainant was moved to office duty at twelve hours
per week. The AJ noted that the investigative file reveals that by
September 2003, complainant was working five days a week, six to eight
hours per day doing office work. Thus, the AJ found that the agency did
not discriminate against complainant based on disability and that they
provided complainant with reasonable accommodation when they assigned
her available work within her restrictions.
The agency issued its final action on August 31, 2005, fully implementing
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. 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.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. Regarding the suspension, the Commission finds that complainant
has not shown that the suspension was related to her protected classes
rather than the vehicle incident. Regarding the reduction of work hours,
we find that complainant has not shown any work that was available within
her restrictions which she was not offered. Regarding the denial of an
interpreter, complainant has not shown or claimed that the agency has ever
provided a language interpreter to any employee for a grievance meeting.
Regarding the October 1, 2003 incident we find that this incident is
not sufficiently severe so as to constitute a hostile work environment
and we also find that complainant has not shown that this incident was
somehow motivated by discrimination. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.<1>
Accordingly, the agency's final action 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
May 12, 2006
__________________
Date
1We do not address in this decision whether
complainant is an individual with a disability.