Kwok L. Wong, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 8, 2009
0120071051 (E.E.O.C. May. 8, 2009)

0120071051

05-08-2009

Kwok L. Wong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kwok L. Wong,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071051

Hearing No. 520-2006-00398X

Agency No. 1A-111-0028-06

DECISION

Complainant filed an appeal from the agency's final action dated November

28, 2006, finding no discrimination with regard to his complaint. In his

complaint, dated May 4, 2006, complainant alleged discrimination based

on race (Asian), national origin (Chinese), disability (left knee),

and in reprisal for prior EEO activity when on February 16, 2006, his

supervisor denied his request for leave every Wednesday and Friday for

physical therapy; he was charged with Absence Without Leave (AWOL) on

February 22 and 24, 2006, and March 1 and 3, 2006, for a total of 10.68

hours; and on May 2, 2006, he was issued a Letter of Warning (LOW).

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On November

14, 2006, the AJ issued a decision without holding a hearing, finding no

discrimination. The agency's final action implemented 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.

The Commission finds that grant of summary judgment was appropriate,

as no genuine dispute of material fact exists. In this case, the AJ

determined that, assuming arguendo that complainant had established a

prima facie case of discrimination, the agency articulated legitimate,

nondiscriminatory reasons for the alleged incidents. During the relevant

time period at issue, complainant was employed as a Building Equipment

Mechanic at the agency's Queens P&DC. Previously, on February 27, 2005,

complainant ruptured his left patella tendon outside of work which

was surgically repaired and subsequently required physical therapy.

Complainant returned to work on August 3, 2005, performing a modified job

assignment, and by September 21, 2005, he was cleared by his physician

to return to full duty.

Complainant's supervisor stated that from August 5, 2005, and continuing

until February 15, 2006, he approved complainant's requested leave of

approximately 4 to 6 hours a week every Wednesday and Friday to attend

physical therapy appointments. In January 2006, the supervisor told

complainant that he would need to make other arrangements for his therapy

since he exhausted his FMLA coverage and the facility could no longer

function with him being out close to 6 hours every week. The supervisor

thereafter denied complainant's request for Wednesday and Friday leave on

February 16, 2006. The supervisor also notified complainant in writing on

February 19, 2006, that as of March 1, 2006, he would need to return to

his normal starting tour time of 2:30 pm, but he failed to do so; thus,

he was issued the AWOL at issue. The supervisor stated that complainant

failed to provide any documentation that in order to receive physical

therapy he had to take Wednesday and Friday leave.

The AJ stated that complainant failed to show that other similarly

situated individuals were treated in a more favorable manner concerning

the use of leave to attend physica1 therapy appointments. The AJ also

stated that complainant also failed to show any legitimate reason why he

could not attend physical therapy during non-work hours. The AJ indicated

that complainant was issued the LOW due to his "conduct unbecoming of a

postal employee." The AJ noted that on April 2, 2006, complainant and

his coworker had an argument resulting in both of them receiving a LOW.

Assuming (without deciding) that complainant was an individual with a

disability, the Commission finds that complainant failed to show that he

was denied a reasonable accommodation or that any agency actions were

motivated by discrimination. Complainant does not allege that he was

required to perform duties beyond his medical restrictions.

Accordingly, the agency's final action is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

5/8/09

__________________

Date

2

0120071051

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013