Mahmoud Mohamed, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 9, 2007
0120054628 (E.E.O.C. Feb. 9, 2007)

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