01986475
05-19-2000
Jing Tan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jing Tan v. United States Postal Service
01986475
May 19, 2000
Jing Tan, )
Complainant, )
) Appeal No. 01986475
v. ) Agency No. 4F945007998
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
INTRODUCTION
Jing Tan (complainant) timely filed an appeal, on August 22, 1998,
with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD), dated July 24, 1998, concerning a
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R.
� 1614.405).
ISSUE PRESENTED
Whether the agency correctly found that complainant was not discriminated
against when she was issued a notice of a ten (10) working day suspension.
BACKGROUND
Complainant was employed, by the agency, as a letter carrier (PS-5). She
filed a formal complaint, on February 13, 1998, alleging discrimination on
the basis of national origin (Chinese) when, on December 1, 1997, she was
issued a notice of a ten (10) working day suspension for unsatisfactory
work performance/fingering mail while going up steps/committing an unsafe
act/failure to follow instructions. In its FAD, the agency found that
complainant had not been discriminated against. This appeal followed.
ANALYSIS AND FINDINGS
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).
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. 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).
In response to complainant's claim that she was discriminated against
when she was issued a ten (10) working day suspension, the agency has
articulated a legitimate, nondiscriminatory reason for its action.
The agency asserted that complainant's suspension was warranted by her
actions when she twisted her ankle on the job. Supervisor of Customer
Services, S-1, asserted that during the investigation of complainant's on
the job injury, complainant admitted to fingering mail while attempting
to go up broken steps and that complainant failed to report that the
steps were broken. S-1 further testified that she has issued discipline
to other employees for similar infractions; these employees include
two (2) African American employees, two (2) Asian American employees,
and one (1) Caucasian American employee. Since the agency articulated
such a reason, the burden returns to the complainant to demonstrate
that the agency's articulated reason was pretext for discrimination.
We find that complainant has failed to do so. Complainant denies
fingering the mail. She also states that three other employees were
injured on the job, but were not suspended; these employees included
one (1) Filipino employee, one (1) Korean employee, and one (1) African
American employee. The record does, however, demonstrate that five (5)
other employees of different national origins than complainant were
suspended for infractions similar to complainant's. Complainant has,
therefore, not presented, nor does the record contain, evidence that the
agency's action was pretextual. Therefore, the agency's determination
that complainant failed to establish that she was discriminated against,
with respect to this claim, was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
05-19-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.