Lang Thi Tran, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01971505 (E.E.O.C. May. 18, 2000)

01971505

05-18-2000

Lang Thi Tran, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lang Thi Tran v. United States Postal Service

01971505

May 18, 2000

Lang Thi Tran, )

Complainant, )

) Appeal No. 01971505

v. ) Agency No. 1-H-336-1048-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On November 30, 1996, Lang Thi Tran (hereinafter referred to as

complainant) initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from a final decision of the agency concerning her

complaint of discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq; the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq;

and �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq.<1> The final agency decision was received by complainant on

November 2, 1996. Accordingly, the appeal is timely filed, and is

accepted in accordance with 64 Fed.Reg. 37,644, 37,659 (1999) (to be

codified at 29 C.F.R. �1614.405).

The issue on appeal is whether complainant proved, by a preponderance

of the evidence, that she was discriminated against on the bases of her

race (Asian), sex (female), national origin (Vietnamese), age (53), and

disability (Carpal Tunnel Syndrome) when she was instructed to report

to her regular job assignment in August 1995.<2>

Complainant filed a formal EEO complaint in September 1992, raising

the above-referenced allegation of discrimination. The agency

accepted complainant's complaint for processing, and conducted an

investigation. Thereafter, the agency provided complainant with a copy

of the investigative report, and notified her of her right to either

an administrative hearing or a final agency decision in the matter.

Complainant failed to timely respond to the notice, and the agency issued

a final decision dated October 30, 1996, finding that complainant had

not been subjected to discrimination. It is from this decision that

complainant now appeals.

A review of the record reveals that complainant was employed as a

Distribution Clerk, but had been working in a light duty assignment

since December 1994 because of her medical condition. Complainant's

doctor had restricted her from performing repetitive movement with both

hands, raising her hands above her shoulders, and lifting over 2 pounds.

The Manager of Distribution Operations (Manager) stated that in August

1995, she asked complainant if she could riffle mail in her regular

area because of a reduced volume of mail on the light duty table.<3>

The Manager indicated that riffling mail was within complainant's

medical restrictions, and that the only difference between performing

the task on the light duty table and in complainant's regular area was

that complainant would be required to stand, an activity which was not

medically restricted. The Manager stated that complainant was not

required to perform her regular duties, only to perform a function

which was within her restrictions in her regular area. The Manager

noted that complainant agreed to try the assignment, and was told to

inform a supervisor if she had any problems. The Manager asserted that

complainant was not required to reach above her shoulders. The Manager

noted that she was merely trying to find a more productive assignment

for complainant within her restrictions. After complainant complained

of having pain, the Manager stated that she was immediately reassigned

to the light duty table and answering the telephone.

Complainant asserted that the Manager told her she was being reassigned

because of the amount of time she had been on light duty. Complainant

stated that she reported to her regular area on August 10, 1995, and

worked on foreign and Canadian mail. Complainant noted that, on August

11, 1995, she was asked by a supervisor to label trays for dispatch.

Complainant stated that while she initially believed she would be able to

perform the task, she felt numbness and pain after labeling two stacks.

Complainant acknowledged that, after telling the supervisor, she was

given another assignment. Complainant noted that, nevertheless, she

was experiencing pain when she left the facility. Complainant stated

that none of the other employees on light duty were asked to return to

their regular duties.

Complainant's complaint presents the issue of whether the agency subjected

her to disparate treatment on the bases of her race, sex, national origin,

and age. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides

an analytical framework for proving employment discrimination in cases in

which disparate treatment is alleged. First, complainant must establish

a prima facie case by presenting enough evidence to raise an inference

of discrimination. McDonnell Douglas, supra, at 802. The agency

may rebut complainant's prima facie case by articulating legitimate,

nondiscriminatory reasons for its action, and if the agency does so,

complainant must show, by a preponderance of the evidence, that the

agency's reasons are a pretext for discrimination. Id.

The Commission notes that the McDonnell Douglas analysis need not

be adhered to in all cases. In appropriate circumstances, when the

agency has established legitimate, nondiscriminatory reasons for its

employment decision, the trier of fact may dispense with the prima

facie inquiry and proceed to the ultimate stage of the analysis,

that is, whether the complainant has proven by preponderant evidence

that the agency's explanations were a pretext for actions motivated

by prohibited discriminatory animus. See United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711 (1983).<4>

The agency stated that while complainant was asked to return to her

regular area, she was given an assignment within her restrictions.

Specifically, the agency noted that the only difference between the

work complainant had been performing and riffling mail in her regular

area was the requirement to stand, an activity for which complainant

had no limitations. Complainant stated that other employees were

not assigned to work in their regular areas. The record, however,

shows that those employees worked in different areas and positions

than complainant prior to their injuries. Further, at least one of

the employees was restricted from standing. Complainant has presented

insufficient evidence to show that the action in question resulted from

her race, sex, national origin, or age. Therefore, the Commission finds

that complainant failed to prove, by a preponderance of the evidence,

that she was subjected to discrimination on those bases.

With regard to complainant's allegation of disability discrimination,

she must first show that she is a qualified individual with a disability.

See Prewitt v. USPS, 662 F.2d 292 (5th Cir. 1981). A disabled individual

is one who: 1. has an impairment which substantially limits one or more

major life activities; 2. has a record of such an impairment; or 3. is

regarded as having such an impairment. 29 C.F.R. �1630.2(g).<5> Major

life activities include caring for one's self, performing manual tasks,

walking, seeing, breathing, learning, and working. 29 C.F.R. �1630.2(i).

In the case at hand, the record shows that complainant was diagnosed with

Carpal Tunnel Syndrome, which substantially limits her ability to lift.

Specifically, complainant had been restricted from lifting over 2

pounds since December 1994. Further, the agency did not dispute that

complainant had been successfully performing her light duty assignment

since December 1994. Thus, we find that complainant is a qualified

individual with a disability within the meaning of the Rehabilitation Act.

Nevertheless, the record does not support a finding of discrimination in

this case. Complainant does not dispute that she was provided reasonable

accommodation prior to August 10, 1995. Further, the agency stated

that the assignment which complainant was given at that time was within

her medical restrictions. The Manager averred that the only difference

between complainant's assignment on the light duty table and that in her

regular area was the requirement that she stand. The record shows that

complainant was not restricted in standing. The Commission also notes

that when complainant told the supervisor that she was experiencing pain

working in her regular area, she was reassigned to the light duty table

and answering the telephone. Complainant does not contend that the

agency has required her to work in her regular area or perform duties

outside of her restrictions since the time of the incident at issue.

Accordingly, the Commission finds that the agency met its obligation to

provide complainant with reasonable accommodation.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is

the decision of the Commission to affirm the agency's final decision of

no discrimination based on race, sex, national origin, age and disability.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

_05-18-00 ___________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

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:

_________________________ __________________________

1On 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.

2Complainant initially claimed that the action in question was also the

result of reprisal. The agency, however, dismissed reprisal as a basis

for the complaint, and provided complainant with appeal rights to the

Commission. There is no evidence that complainant appealed the dismissal,

and, as such, the claim of reprisal will not be addressed herein.

3Riffling mail consisted of taking mail from a tray, examining it,

and placing it in an empty tray or cart.

4The Commission notes that while the agency stated, in part, that

complainant failed to establish a prima facie case because she did not

show that she was treated differently than similarly situated employees,

complainant must only present evidence which, if unrebutted, would support

an inference that the agency's actions resulted from discrimination.

O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,

EEOC Notice No. 915.002, n. 4 (September 18, 1996).

5The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.