Gwen Huang, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 11, 2002
01A01175 (E.E.O.C. Apr. 11, 2002)

01A01175

04-11-2002

Gwen Huang, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gwen Huang v. United States Postal Service

01A01175

April 11, 2002

.

Gwen Huang,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A01175

Agency No. 4F-945-0134-98

Hearing No. 370-97-X2673

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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final order.

The record reveals that complainant, a part-time Flexible Window Clerk,

PS-05 at the agency's Alameda, California facility, filed a formal EEO

complaint on April 1, 1998, alleging that the agency had discriminated

against her on the bases of race (Chinese), national origin (Asian)

and sex (female) when it issued a Notice of Removal on February 3,

1998 charging her with unsatisfactory work performance.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of race, sex and national origin discrimination because subsequent

events had rendered her allegations regarding the February 3, 1998

Notice of Removal moot. Specifically, the AJ found that the union

and the agency agreed to withdraw and expunge the Notice of Removal

from complainant's record and to allow her to resign. In addition,

assuming arguendo that her allegations were not moot, the AJ found

that complainant failed to establish a prima facie case of race, sex

and national origin discrimination because she failed to identify any

similarly situated employees outside of her protected groups who were

treated more favorably under similar circumstances. The agency's final

order implemented the AJ's decision.

Complainant makes no new contentions on appeal, and the agency requests

that we affirm its final order.

Complainant does, however, continue to take issue with the AJ's reliance

on Flores v. Department of the Army, EEOC Appeal No.01831886 (December 28,

1983) for his conclusion that complainant's allegations are moot. As

we understand her argument, complainant contends that her case is

different than Flores because her sole motivation for resigning was

the agency's conduct which she regards as discriminatory. Since the

agency's conduct was tainted by discrimination, her resignation was

also tainted by discrimination. Moreover, according to complainant,

unlike the wrong in Flores, which was remedied when the agency expunged

the disciplinary memo, complainant's termination was not righted when

she resigned in face of the Notice of Removal.

The Commission need not reach the question of whether the Flores decision

controls the present situation because we find that dismissal on the

grounds that the claim was rendered moot would be improper. Although the

complainant, the union and the agency agreed to withdraw and expunge

the Notice of Removal from the complainant's record and to allow the

complainant to resign, complainant's complaint requests that she be made

whole, including reinstatement and reassignment to another facility.

Further, should complainant prevail on this claim, the possibility of an

award of compensatory damages exists. See Glover v. United States Postal

Service, EEOC Appeal No. 01930696 (December 9,1993). As the AJ has not

addressed the issue of compensatory damages, we find that dismissal

on the grounds that the claim was rendered moot would be improper.

See Rouston v. National Aeronautics and Space Administration, EEOC

Request No. 05970388 (March 18, 1999).

Complainant also takes issue with the AJ's finding that, even assuming

that her allegations are not moot, she has not established a prima facie

case because she has failed to identify any similarly situated employees

who were not in her protected groups who were treated more favorably than

complainant. Complainant does not dispute the AJ's finding that there

is a lack of comparators. Rather, complainant argues that the agency's

legitimate, nondiscriminatory reason is a pretext for discrimination.

In this regard, complainant argues that there is an inference of

discrimination based on complainant's protected status and evidence in the

record that she could do the job, namely testimony from three coworkers

who stated that on the occasions when they observed complainant, she

was performing her job and the complainant's demonstration during the

hearing that she was able to perform certain duties her supervisors

claimed that she could not.

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 she 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. 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. 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. St. Mary's Honor center v. Hicks, 509 U.S. 502 (1993).

The 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 as here, 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. U.S. Postal Service

Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

Thus, while complainant is correct in her assertion that the failure

to identify comparators is not necessarily fatal to the establishment

of a prima facie case, nonetheless, in the absence of comparators,

complainant must point to other acts from which, if otherwise unexplained,

an inference of discrimination can be drawn. See Quinn v. Tennessee

Valley Authority, EEOC Appeal No. 01956441 (January 30, 1998).

Assuming complainant established a prima facie case, we find that

the agency articulated legitimate, nondiscriminatory reasons for its

action. Although the AJ heard testimony and reviewed evidence as to the

agency's articulated reason for its action, he did not reach the issue

of whether the agency's stated reason was a pretext for discrimination

because of complainant's inability to establish a prima facie case.

We note, however, that there is substantial evidence on the record to

support the agency's legitimate, nondiscriminatory reason for issuing

complainant the Notice of Removal. Complainant's supervisor, who

supervised her for five or six hours per day, testified that complainant

was incapable of doing the work that every PTF was required to do.

Another supervisor, who supervised complainant for the remaining two hours

of the day, also testified that she could not do the minimum amount of

labor required for her position.

Significantly, however, there is no evidence on the record to suggest

that the action taken against the complainant was in any manner related

to her race, sex or national origin, nor is there any evidence to link,

either directly or indirectly, the Notice of Removal to complainant's

protected status. Consequently, to the extent that complainant points

to evidence in the record which may arguably contradict the agency's

articulated legitimate, nondiscriminatory reason for its action, we

are not persuaded that such contradictory evidence raises an inference

of discrimination.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the

AJ's findings of fact are supported by substantial evidence in the

record and that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We note that complainant failed to present evidence that the agency's

action was motivated by discriminatory animus toward complainant's

race, sex or national origin. We discern no basis to disturb the AJ's

ultimate determination. 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 agency's final order.

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 11, 2002

__________________

Date