0120054628
02-09-2007
Mahmoud Mohamed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mahmoud Mohamed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200546281
Agency No. 1F-946-0045-02
Hearing No. 370-04-00248X
DECISION
Pursuant to 29 C.F.R. 1614.405, the Commission accepts complainant's
appeal from the agency's final action in the above entitled matter.
The record reflects that complainant had been employed as a Supervisor
of Distribution Operations at the agency's Oakland Processing and
Distribution Center in Oakland, California. Complainant had been employed
by the agency for approximately sixteen years, but went on extended
disability leave in 1998. The record reflects that from 1998 to 2002,
complainant received worker's compensation benefits, based upon the
determination of his physicians that complainant could not work in any
capacity. In 2002, the agency was informed that complainant's medical
condition was too severe to refer him to rehabilitation. The agency
advised complainant that complainant was eligible to initiate the process
leading to a disability retirement. On August 5, 2002, complainant's
disability retirement was approved by the Office of Personnel Management
(OPM).
On or about August 5, 2002, complainant filed a formal complaint, claiming
that he was the victim of unlawful employment discrimination on the bases
of race (Arab/Semitic), national origin (Egypt), religion (Islamic),
color (brown), age (d.o.b. 9/27/1952), disability (post traumatic stress
disorder), and in reprisal for prior protected activity. 2 Complainant
claimed that he was constructively discharged from agency employment.
Complainant also addressed a variety of other alleged discriminatory
matters, for a total of twenty-five claims. These claims addressed
a variety of incidents relating to matters preceding complainant's
separation from agency employment, i.e., agency failure to respond
to requests that false information be removed from his disability
retirement file, failure to provide him a copy of a regional approval
referenced in a retirement counseling notice, refusal to provide
him with clarification regarding a retirement counseling notice,
mistreatment of his representative when she called a manager to inquire
about complainant's retirement counseling notice, and being called by a
Human Resources Specialist for a retirement counseling appointment for
a day that was previously considered unavailable.
On September 16, 2002, the agency issued a document identified as
"Acknowledgment of Amendment to Mixed Case Complaint and Partial Dismissal
of Mixed Case Complaint. Therein, the agency accepted some claims
for investigation, and dismissed the remaining claims on a variety of
procedural grounds. Following the investigation of the accepted claims,
complainant requested a hearing before an Administrative Judge (AJ).
On April 7, 2005, the AJ issued a decision without a hearing. The AJ
determined that the issue before him was whether in 2002, complainant
was subjected to harassment and/or disparate treatment resulting in his
constructive discharge because of his race/national origin, age, color,
religion, disability and prior protected activity. In identifying the
issue, the AJ expressly noted that "[A]ll of complainant's allegations
are considered herein, including those properly dismissed by the agency."
The AJ concluded that complainant offered no evidence, other than
speculation, that he suffered a tangible employment action as a result of
any of the exchanges or incidents that he raised; or that he was treated
less favorably that similarly situated employees of a different protected
status, under similar circumstances. The AJ further determined that the
agency explained all of its actions for non-discriminatory, substantive,
and legally sufficient reasons, and that the is no evidence of pretext
with regard to nay of the matters.
Regarding the issue of harassment, the AJ determined that the various
mishaps, activities and incidents identified by complainant do not
constitute harassment because complainant was unable to show that
these matters could be characterized as permeating his workplace with
"discriminatory intimidation, ridicule and insult" that was sufficiently
severe or pervasive to alter the conditions of his employment or create
an abusive environment.
Regarding the issue of constructive discharge, the AJ noted that
complainant had timely appealed his retirement/termination to the Merit
Systems Protection Board (MSPB); and that the MSPB had determined that it
lacked jurisdiction because complainant was not subjected to constructive
discharge or wrongful termination. The AJ determined that complainant's
retirement in 2002 was not motivated or influenced by factors "other than
his absence from the workplace since 1998 because he was unable to work"
and that the evidence did not support a finding that his "disability
retirement was somehow engineered because of his race, national origin,
color, religion, age, or prior EEO activity."
On May 19, 2005, the agency issued a final action, implementing the
AJ's finding of no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. �1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a review of the record in its entirety, it is the decision of the
Commission to AFFIRM the agency's final order, because the AJ's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.
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 9, 2007
__________________
Date
1Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The Commission presumes, for purposes of analysis only and without so
finding, that complainant is an individual with a disability.
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2
01A63614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120054628