0120064676
03-28-2008
Gilbert Sayegh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gilbert Sayegh,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200646761
Agency No. 1F-901-0026-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 25, 2006, final decision 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.
Complainant worked as a mail processing clerk at the Los Angeles,
California, P&DC and had previously been detailed to retail operations.
He filed a formal complaint on January 17, 2006, claiming that the
agency discriminated against him on the basis of reprisal for prior
protected EEO activity when the agency rejected his request to return
to the retail store in December 2005. Following an investigation, on
May 11, 2006, the agency transmitted the Report of investigation (ROI)
to complainant and notified him of his right to request a hearing or a
final agency decision without a hearing. See 29 C.F.R. � 1614.108(f).
When complainant did not respond within 30 days, the agency issued a
final agency decision (FAD).2
In its FAD, the agency noted that, although complainant contended that
his request to return to the retail store was denied because he had
named certain managers in a prior EEO complaint, the agency asserted that
the same managers were not involved in the job assignments in question.
Nonetheless, the agency assumed arguendo that complainant articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the acting manager of the retail activity explained that employees
interested in the position filed internal agency applications (Form 991),
but complainant did not do so; instead, he only requested a return to
the his former detail position which no longer existed. Further, the
former manager stated that complainant's performance did not meet her
expectations, in that, he had difficulty completely projects he was
assigned and complained more than resolved problems.3 She asserted
that another employee "best met the needs of the duties." The agency
then determined that complainant failed to show that its reasons were
pretext for discrimination.
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
__03-28-2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 With his appeal, complainant submitted a request for hearing dated
August 9, 2006. Complainant's request for a hearing is untimely and
should have been submitted within 30 days of his receipt of the ROI.
29 C.F.R. � 1614.108(f).
3 With his appeal, complainant submitted documents from another EEO
matter. We find that those documents are not relevant to this case.
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0120064676
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064676