0120122184
10-10-2012
Najeeb A. Malik, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Najeeb A. Malik,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122184
Hearing No. 570-2011-00775X
Agency No. 1K-222-0007-11
DECISION
Complainant filed an appeal from the Agency's March 21, 2012 Final Order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Dulles Processing & Distribution Center facility in Dulles, Virginia. On March 23, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Pakistani), sex (male), color (brown), and religion (Muslim) when:
1. From December 17, 2010, and continuing, on various dates Complainant has been denied union representation;
2. Beginning December 17, 2010, and continuing, Complainant has been harassed, singled out regarding his job assignment. Complainant's supervisor (S1) was instructed to watch Complainant at all times;
3. On December 20, 2010, Complainant was called in for a Pre-Disciplinary Interview and subsequently issued a Letter of Warning for Unsatisfactory Performance/Failure to Follow Instructions/Abandonment of Position; and
4. On January 21, 2011, Complainant received a 7-Day Suspension for Failure to Follow Instructions/Improper Conduct.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. By order dated February 24, 2012, the AJ dismissed Complainant's complaint from the hearing process. Complainant does not dispute the dismissal of the hearing request. The Agency subsequently issued a Final Decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In a Partial Acceptance/Partial Dismissal dated April 11, 2011, the Agency dismissed claim (1) because this claim attempted to raise a matter that should properly be addressed through the Agency's negotiated grievance process and not the EEO process. The Agency found that claim (2) did not describe an Agency action that rendered Complainant aggrieved and that Complainant did not describe incidents that rose to the level of harassment. The Agency found that with regard to claim (3), the Letter of Warning identified therein was subsequently removed and expunged from Complainant's records. Accordingly, the Agency dismissed claims (1) through (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Regarding claim (4), the Agency found that Complainant had been issued the Notice of 7-Day Suspension (Notice) after he failed to follow the instructions of S2 to return to work following the repair of machinery to which he was assigned. The Agency found that Complainant did not identify any similarly situated employee, not in his own protected groups, who was treated better than he was under similar circumstances. Complainant identified E1 as receiving preferential treatment, but the Agency found that E1 reported to different supervisors. Complainant also sought to compare himself to E2, the mechanic assigned to repair the machine at Complainant's station. The Agency found that S2 denied treating E2 differently.
The Agency noted that S2 stated he followed E2 to Complainant's station after a jam was reported. The Agency found that S2 instructed Complainant to return to his machine, start it, and to work, but that he failed to return to work. The Agency found that Complainant received the Notice after S3 (Complainant's second line supervisor) investigated the incident between Complainant and S2, and that S2 concurred in the discipline that S3 issued to Complainant. The Agency found that legitimate, nondiscriminatory reasons were articulated by S2 and S3 for issuing the Notice that Complainant did not show were a pretext for discrimination on any basis. The Agency concluded that Complainant failed to show that the Agency's actions were motivated by his race, sex, color, or religion.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "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").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful if it is sufficiently patterned or pervasive. Garretson v. Dep't of Veterans Affairs, EEOC Appeal No. 01945351 (Apr. 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two types of such harassment: (1) harassment that results in a tangible employment action; and (2) harassment that creates a hostile work environment.
In the instant case, we find that on appeal, Complainant does not challenge the Agency's dismissal for failure to state a claim of claims (1) - (3) and therefore we will not address the dismissal of these claims.
Regarding claim (4), we concur with the Agency that Complainant failed to present evidence that more likely than not his race, sex, color, or religion motivated the Agency's actions in issuing the Notice of 7-Day Suspension to him. We note that while Complainant and S2 offer somewhat different accounts of the incident that led to the discipline, we do not find any evidence that race, sex, color, or religion motivated the issuance of the discipline. Accordingly, we find Complainant did not show that he was subjected to discrimination as alleged.
CONCLUSION
We therefore AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 10, 2012
__________________
Date
2
0120122184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122184