0120064871
05-01-2008
Wai S. Chan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wai S. Chan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200648711
Agency No. 4E640007805
Hearing No. 560200600034x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal2 from the agency's September 27, 2006, final decision (FAD)
concerning her equal employment opportunity (EEO) complaint alleging
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
At the time of the events herein, complainant was a new employee
working as a part-time flexible carrier (PTF) at the Truman Station
in Independence, Missouri. She claimed discrimination based on race
(Asian), sex (female), color (yellow), disability (knee injury, back,
diabetes, high blood pressure), and in reprisal for prior protected EEO
activity when: (a) from May 28 through July 27, 2005, the agency did
not provide her with a reasonable accommodation; (b) on July 19, 2005,
she was given only four hours of work; (c) on July 19, 2005, she did not
receive night differential pay; and (d) on August 8, 2005, she received
a Notice of Termination for providing misleading information about her
reporting time.3 Following an investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On August 14, 2006,
the AJ dismissed complainant's hearing request for failure to comply with
her orders and instructions. The agency issued a FAD, finding that it
did not discriminate against complainant.4
Initially, the agency found that complainant did not establish a prima
facie case of discrimination based on disability and thus was not entitled
to a reasonable accommodation.5 Assuming that she had established a
prima facie case on all bases alleged, the agency explained, as to (a)
complainant never requested a reasonable accommodation nor physically
appeared to have an impairment that required one; (b) PTF carriers are
not guaranteed more than four hours of work per day; (c) the agency's pay
records show that she was paid night differential; and (d) on June 21,
2005, she falsified her time card, according to at least four witnesses.
The agency concluded that it articulated legitimate, nondiscriminatory
reasons for its actions, and complainant did not demonstrate pretext.6
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision is affirmed.
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
___05-01-2008_______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Complainant filed a premature letter/appeal with the Commission on
August 21, 2006, in response to the dismissal of her hearing request by
the EEOC Administrative Judge (AJ). She thereafter filed a subsequent
statement on October 7, 2006, questioning the agency's issuance of a
final decision. Since the agency issued a FAD on September 27, 2006, we
accept complainant's filings as a timely appeal from the agency's FAD.
3 On October 12, 2005, the agency dismissed her claim that the agency
contravened her claim for workers' compensation benefits on the grounds
that it failed to state a claim. We affirm the agency's action.
29 C.F.R. � 1614.107(a)(1).
4 We find that the AJ had legitimate and compelling reasons to dismiss
complainant's hearing request, including complainant's failure to respond
to discovery, to properly address the agency's representative, and to
properly respond to the AJ's Notice to Show Cause. Complainant had been
on notice that she must comply with the orders and directions of the AJ,
and her refusal to do so merited dismissal of the hearing as a sanction.
See 29 C.F.R. � 1614.109(e)(3).
5 Agency managers stated that they were unaware of complainant's
impairments, noting that she had signed a form attesting that she had
none at the time of her hire.
6 We assume, without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120064871
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036