01973131
06-08-1999
Dinesh P. Ghandi, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.W. Metro Areas) Agency.
Dinesh P. Ghandi, )
Appellant, )
)
v. ) Appeal No. 01973131
) Agency Nos. 4A-070 1097-95
) 1A-075-1004-96 )
William J. Henderson, ) Hearing Nos. 170-96-8145X
Postmaster General, ) 170-96-8506X
United States Postal Service, )
(N.E./N.W. Metro Areas) )
Agency. )
________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him 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 C.F.R. � 621 et seq.,
and the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791, et seq. In his first complaint, appellant alleged that
the agency discriminated against him on the bases of race (Asian), color
(non-Black), national origin (India) age (D.O.B: 2/12/43), and physical
disability (diabetes), when on May 26, 1995, he was discharged as a
Part-Time Flexible (PTF) letter carrier during his probationary period.
In his second complaint, appellant alleged that the agency discriminated
him on the bases of his race, color, national origin and age, as stated
above, and on the basis of reprisal (prior EEO activity), when he
was terminated as a casual clerk on January 11, 1996. This appeal is
accepted by the Commission in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's final decision is AFFIRMED.
With respect to appellant's first complaint, the record establishes that
on March 25, 1995, appellant was employed by the agency as a PTF letter
carrier, PS-5, at the Patterson Main Post Office, River Street Station.
Appellant's appointment in the PTF position was subject to completion of
a 90 day probationary period. Concerning appellant's second complaint,
on September 9, 1995, the agency appointed appellant to a casual
clerk position, EAS-7, at the Patterson Processing and Distribution
Center, PDC (PDC). Appellant received a second and third appointment
to a casual clerk position on December 1, 1995, and January 1, 1996,
respectively. The record reveals that casual employees of the agency,
such as appellant, are limited to two 90-day terms of casual employment
each calendar year; and, may be re-employed during the Christmas period
for no more than 21-days.
Following an investigation of his first complaint (discharge from the
PTF position), appellant requested a hearing before an Equal Employment
Opportunity Commission (EEOC) administrative judge (AJ). A hearing
was conducted on January 30, 1997. Immediately after the hearing,
the AJ issued a Recommended Decision (RD) finding no discrimination.
Following an investigation of appellant's second complaint (termination
from the casual clerk position), appellant also requested a hearing
before an EEOC AJ. Pursuant to 29 C.F.R. � 1614.109(e), on January 30,
1997, the AJ issued a RD without a hearing, finding no discrimination.
With respect to the above complaints, on February 18, 1997, the agency
issued a final decision, adopting the AJ's findings of no discrimination.
It is from this decision that appellant now appeals.
Regarding the first complaint, in his RD, the AJ determined that appellant
established a prima facie case of race (Asian) color (non-Black), national
origin (India), and age discrimination. However, the AJ concluded
that the agency articulated legitimate non-discriminatory reasons for
discharging appellant as a PTF carrier. Appellant was discharged because
of poor work performance. Furthermore, the AJ found that appellant failed
to show that the agency's non-discriminatory reasons were pretextual.
With respect to disability discrimination, the AJ concluded that appellant
failed to establish a prima facie case of disability discrimination.
Specifically, appellant did not establish that he was a qualified
individual with a disability under the Rehabilitation Act. However,
we find that even assuming an inference of disability discrimination is
established, the agency articulated appellant's poor work performance as
its legitimate non-discriminatory reasons for discharging appellant.
Moreover, appellant failed to establish these reasons as pretext
for discrimination. It is noted that failure to provide a reasonable
accommodation was not raised as an issue and the record could not support
such an allegation.
Addressing his second complaint, the AJ determined that appellant
established a prima facie case of reprisal discrimination. The AJ also
determined that appellant failed to establish a prima facie case of
discrimination based on race, color, national origin or age, when he
was terminated as a casual clerk. Assuming, arguendo, that appellant
had established a prima facie case of discrimination based on reprisal,
race, color, national origin or age, the AJ concluded that the agency
established legitimate non-discriminatory reasons for terminating
appellant as a casual clerk. Specifically, appellant was terminated due
to unsatisfactory work performance and behavior, and for treating his
supervisor with disrespect. Furthermore, the AJ concluded that appellant
failed to establish that the agency's legitimate non-discriminatory
reasons were a pretext for discrimination, because appellant did not
satisfy the normal prerequisites of his position.
After a careful review of the record in its entirety, including
arguments and evidence not specifically addressed in this decision,
the Commission finds that the AJ's RD sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaints. We agree with the AJ. Therefore,
the Commission discerns no basis in which to disturb the AJ's findings
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 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:
6/08/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations