0120064197
09-27-2007
Diana Liu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diana Liu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200641971
Agency No. 1F946000803
Hearing Nos. 550200602592x;
370200600093x2
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 22, 2006, final order adopting the decision
of the EEOC Administrative Judge that the agency did not discriminate
against her with regard to her equal employment opportunity (EEO)
complaint alleging 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.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 21 et seq.
Specifically, in her formal complaint, complainant claimed discrimination
based on national origin (Chinese), disability (stress), sex, race
(Asian), age (D.O.B. 11/08/49), and reprisal for prior protected EEO
activity when, in October 2002, she was issued a notice of suspension,
placed on administrative leave, instructed to take a fitness-for-duty
examination (FFS); and she was denied a transfer to a different facility
in 2002-2003.
At the time of the events herein, complainant was a parcel post
distribution clerk at the agency's Oakland, CA, facility. As set out
more fully in the AJ's decision, in approximately October 2002, the
agency issued complainant a notice of suspension for misconduct (making
a false accusation) that occurred in the course of an ongoing dispute
with another employee (black, female) (E1).3 In May 2003, complainant,
because of behavior that was described as aggressive, erratic, and angry,
was placed on administrative leave. Also, in May 2003, the agency
denied her request to swap jobs with an employee at another facility,
because that employee had a poor record of attendance. Complainant was
eventually evaluated by several psychiatrists who diagnosed her with,
inter alia, chronic schizophrenia and paranoia and, because of her
medical history, found that she was unfit to work until she responded
to treatment. As of February 2004, her condition went into remission,
and she returned to work without any medical restrictions.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions and that complainant did not present evidence
that responded to or undermined the agency's articulated reasons, nor
did she present probative evidence demonstrating pretext. He also found
that complainant did not establish that she was subjected to harassment
or a hostile work environment, finding that "complainant, herself, was
largely responsible for creating the workplace trials and tribulations
she complained about." AJ, p. 18. Also, he found that her claims of
discrimination and retaliation were "at best, implausible." AJ, p. 20.
EEOC Regulation 29 C.F.R. � 1614.405(a) provides that all post-hearing
factual findings by an Administrative Judge will be upheld if supported
by substantial evidence in the record. Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
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 order,
because the Administrative Judge's ultimate decision that the agency did
not discriminate against complainant was appropriate, 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
_____9/27/07_____________
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 This matter was returned to the EEOC San Francisco District Office for
a hearing following the decision in EEOC Appeal No. 01A42918 (October 27,
2005), request to reconsider den., EEOC Request No. 05A60265 (December
11, 2005). In that decision, the Commission found that a genuine
issue of material fact existed regarding complainant's status under the
Rehabilitation Act and that claim appeared to be intermingled with her
harassment/hostile work environment claim. A hearing was conducted on
March 30, 2006. The agency also referred to Hearing No. 370200500202x,
which Commission records show was withdrawn on September 22, 2005.
3 Specifically, complainant accused E1's spouse of murdering their child,
who had died at a young age.
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0120064197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064197