01A24810_r
02-05-2004
Wijahat Riyaz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wijahat Riyaz v. United States Postal Service
01A24810
February 5, 2004
.
Wijahat Riyaz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24810
Agency No. HI-0049-01
Hearing No. 120-A2-1172X
DECISION
Complainant appeals to the Commission from an agency final order regarding
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.
The record reveals that complainant, a Mail Processor, at the agency's
Springfield Processing and Distribution in Springfield, Missouri,
filed a formal complaint on May 8, 2001. Therein, complainant claimed
that the agency discriminated against him on the bases of race (Asian)
and in reprisal for prior protected activity, when on December 15, 2000,
he was not selected for the position of Postal Inspector.
The record reflects the following chronology of events prior to
complainant's non-selection for the subject position. Complainant
initially filed an application for the position of Postal Inspector in
1996; and his application was then denied because he did not possess a
special skill. The record further reflects that complainant thereafter
updated his application to include a special skill (language of Hindi);
however, his application was again denied in June 1999, because he
failed a pre-employment physical for not meeting eyesight requirements.
The record reveals that in his correspondence with the agency officials,
complainant expressed interest in several positions of Postal Inspector
but was repeatedly denied for failing to meet the eyesight requirement.
In August 2000, complainant had lasik surgery which allowed him to meet
the eyesight requirement.
Thereafter, complainant applied for the position that is the subject
of the instant complaint, and was non-selected in December 2000.
The record reveals that complainant failed in eight schemes: written
communication; oral communication; setting priorities; following
instructions; interpreting information; dealing with people; decision
making; and extracting details. Furthermore, the record reflects that
complainant could be reassessed after one year but he would not meet
the age requirement.
Complainant filed the instant formal complaint regarding the December
2000 non-selection, as noted above. At the conclusion of the agency's
investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing held on July 1, 2002, the AJ issued a decision
finding no discrimination, on August 2, 2002.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination on the bases of race, national origin or in reprisal
for prior protected activity when he was not selected for the position of
Postal Inspector.<1> The AJ found that complainant failed to demonstrate
that similarly situated employees not in complainant's protected classes
were more favorably treated under similar circumstances. The AJ also
determined that assuming arguendo complainant established a prima facie
case, the agency articulated legitimate, nondiscriminatory reasons for
not selecting complainant for the subject position. Specifically,
the AJ found that the witnesses' testimonies during the July 1,
2002 hearing concerning the selection of the application process to
be credible; and that participants who passed the examination scored
better than complainant. The AJ noted in the witnesses' testimonies
showed that complainant was not as active as other participants during
the active discussion or problem-solving and scored low points while
other participants had better scores.
The AJ noted that complainant claimed that his command of English was
one of the reasons why he did not pass the application. The AJ found,
based on his personal observation of complainant, that he speaks �very
fluent English.� The AJ acknowledged that he found it difficult to
understand him when he first met him, but that he had �no problem� in
understanding complainant thereafter. The AJ further concluded that
complainant's command of English was not the reason why he failed the
examination.
Regarding complainant's claim that the selection process was �overly
subjective,� the AJ determined that while every test is subjective,
the subjectivity of the test for the subject position was not grounded
in �impermissible discrimination.� Regarding complainant's claim that
individuals in his protected classes were screened out of the process
based on unlawful discrimination, the AJ found no evidence to support
complainant's contentions. The AJ found that thousands of parties
applied for the subject position; and that the selection procedure for
Postal Inspector positions was a �fine screening process.� Further,
the AJ concluded that complainant's race, national origin or reprisal did
not have anything to do with the selection process and that applicants
who passed the examination scored better than complainant.
Regarding complainant's claim that the delay in his application process
for the subject position hurt his chances of being selected, the AJ
found that the application process takes a long time. The AJ noted that
there was some delay by the agency but that any delay was unintentional.
The AJ further concluded that complainant failed to show that any of
the reasons proffered by the agency were a pretext for discriminatory
animus and/or retaliatory motive.
The agency's final action of October 9, 2002, implemented the AJ's
decision.
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 and so, will be affirmed if supported
by substantial evidence in the record. 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, meaning
that they are reviewed anew on appeal.
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 properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race or national origin.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, we AFFIRM the agency's final action.
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 5, 2004
__________________
Date
1The record reveals that AJ accepted
complainant's request to have national origin (Pakistani) added as a
basis to his complaint.