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