01A31432
02-26-2004
Rajan Zed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Rajan Zed v. United States Postal Service
01A31432
February 26, 2004
.
Rajan Zed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01A31432
Agency No. 1E-895-0015-00
Hearing No. 370-A1-2284X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, an Associate Supervisor at the
agency's Reno Processing and Distribution Center facility, filed a formal
EEO complaint on June 12, 2000. Complainant alleged that the agency
had discriminated against him on the bases of his race (Asian/Indian),
religion (Hindu), and disability (Insomnia)<1>, and in reprisal for
protected EEO activity when:
(1) he was denied training on various dates during the year 2000
including CPR, OSHA training, and Automation Systems Management training;
(2) he was not selected for the position of Operations Support
Specialist;
he was refused a request to transfer to Tour 2 as a reasonable
accommodation;
he was issued a Letter of Warning on June 8, 2000; and
his request for a 3 day work week was denied.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination on any of the protected bases alleged.
The AJ framed the numerous factual allegations as stating a claim for
harassment.<2> She faulted the agency's decision to dismiss numerous
factual incidents as unduly fragmenting the complaint. Even so, the AJ
concluded that the agency's management officials were credible in their
explanations for the actions they took. She concluded that complainant
did not come forward with evidence the agency management officials acted
based on his race, his religion or the fact that he engaged in protected
EEO activity. The AJ found that some inappropriate comments were made
about complainant's religious beliefs but they did not pervade the work
atmosphere to such an extent that they altered the terms and conditions
of his employment.
Addressing complainant's claim that he was denied a reasonable
accommodation in the form of a change in tour duty, the AJ found the
complainant failed to present adequate evidence that he had a disability
within the meaning of the Rehabilitation Act. Assuming arguendo that
complainant had a disability, the AJ found that the agency reasonably
offered to change his graveyard shift to the swing shift in response to
his insomnia. She determined that complainant did not show the offer
of the swing shift was an unreasonable or ineffective accommodation.
The AJ concluded that complainant's refusal to accept the agency's shift
offer was not reasonable and therefore, she concluded the agency did
not discriminate against him on the basis of a disability. The agency's
final order implemented the AJ's decision.
Neither party submitted comments on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision was a correct application of the law
and related Commission policy. Complainant has offered no reasons on
appeal for overturning the AJ's decision nor does he give arguments
or point to evidence outlining any error in the AJ's conclusions.
For these reasons, we discern no basis to disturb the AJ's decision.
Therefore, based on the evidence in the record as a whole, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final order.
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
February 26, 2004
__________________
Date
1The AJ noted in her findings that complainant had not raised the issue
of disability discrimination in his complaint but that the issue should
be decided based on complainant's testimony.
2Complainant alleged 49 separate factual incidents of which the agency
accepted five for investigation. The agency dismissed 35 incidents
for untimely EEO counselor contact and the remainder were dismissed for
failure to state a claim.