01a42792_r
05-11-2005
Fongpin Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Fongpin Chen v. United States Postal Service
01A42792
May 11, 2005
.
Fongpin Chen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42792
Agency No. 4E-980-0020-02
Hearing No. 380-A2-8244X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of 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. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Special Delivery Clerk at the
agency's Seattle P&DC facility, filed a formal EEO complaint on December
10, 2001, alleging that the agency discriminated against him on the bases
of disability (ankle), age (D.O.B. 8-2-1946) and in reprisal for prior
EEO activity when his Special Delivery position was abolished effective
November 2, 2001, violating a 1992 agreement. Regarding the �1992
agreement,� the record contains a copy of an EEO Dispute Resolution
Specialist's Inquiry Report which indicates that complainant claimed
that when he was transferred to the Special Delivery position in 1992,
agency management promised him that he would remain in that position
until he retired.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).<1>
Thereafter, the agency submitted to the AJ a Motion for Summary
Judgment (Motion). Therein, the agency argued that complainant failed
to establish a prima facie case of discrimination on any of the raised
bases. Moreover, the agency argued that even assuming that complainant
established a prima facie case of discrimination, it articulated a
legitimate, non-discriminatory reason for its actions which complainant
did not prove was a pretext for discrimination. Specifically, the agency
stated that elimination of complainant's bid for the Special Delivery
position was abolished along with fifteen other positions, due to an
agency realignment of Express Mail Service. The agency stated that
a National Agreement and a Memorandum of Understanding reflected that
the positions that were eliminated were those with the least seniority.
The agency noted that management followed the Agreement with the American
Postal Workers Union in deciding to abolish complainant's position.
Regarding a �1992 agreement� referenced by complainant in his formal
complaint, an agency Manager stated during the investigation that
�[T]here was not an agreement in 1992 and therefore none was violated
in the downsizing of this unit� and that complainant was never promised
that he would stay in the Special Delivery Unit until his retirement.
However, the Manager also stated that there existed a �1992 agreement�
wherein the Manager would make sure that complainant received close to
40 work hours per week when complainant changed crafts (from FTR Letter
Carrier to PRF Special Delivery Messenger).
In its Motion, the agency stated that the parties disputed whether the
agency agreed to provide complainant a lifetime job, but that this is not
a �material fact.� The agency stated that assuming that a 1992 agreement
exists, the inquiry is whether the agency breached such an agreement for
discriminatory reasons; and that complainant is unable to come forward
with any evidence to rebut the agency's legitimate, nondiscriminatory
reason for abolishing his position (and thereby purportedly breaching
this alleged agreement).� The record does not contain a copy of any
1992 settlement agreement.
On January 30, 2004, the AJ issued a decision without a hearing, finding
no discrimination. The AJ incorporated the agency's Motion, found that
summary judgment was appropriate, and determined that complainant did
not meet his burden of establishing, by a preponderance of the evidence,
that he was subject to disparate treatment because of age, disability
or in reprisal for prior protected activity.
The agency's final action dated February 19, 2004, implemented the AJ's
decision.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment action, which we determine
were not persuasively rebutted by complainant.<2> 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. 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.
Accordingly, the agency's final action implementing the AJ's finding
of no discrimination, when complainant's bid assignment was abolished,
was proper and is AFFIRMED.
Finally, we note that complainant is in essence claiming that the agency
breached a �1992 agreement,� that purportedly provided for agency
assurances that complainant would remain in the Special Delivery Unit
until his retirement. The record contains no copy of a 1992 settlement
agreement with such a provision. However, assuming that such a binding
written settlement agreement were in existence, the agency's actions
would not constitute breach. The Commission has held that a settlement
agreement that places a complainant into a specific position, without
defining the length of service, will not be interpreted to require
the agency to employ the complainant in the position in perpetuity.
See Parker v. Department of Defense, EEOC Request No. 05910576 (August
29, 2001).
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 11, 2005
__________________
Date
1The record reflects that on September
24, 2002, complainant and the agency executed a settlement agreement
in resolution of the instant complaint. However, the record further
reflects that by letter dated October 11, 2002, complainant exercised
his right to rescind the September 24, 2002 settlement agreement, and
his case was placed back on the AJ's hearing docket.
2The Commission presumes for the purposes of analysis only, and without
so finding, that complainant is an individual with a disability.