01A13075
07-05-2002
Moustafa A. El-Shahat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Moustafa A. El-Shahat v. United States Postal Service
01A13075
July 5, 2002
.
Moustafa A. El-Shahat,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A13075
Agency No. 4A-105-1051-94
Hearing No. 160-97-8540X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Window/Distribution Clerk at the agency's Beacon Post Office in
Beacon, New York. Complainant sought EEO counseling and subsequently
filed a formal complaint on December 15, 1994, alleging that he was
discriminated against on the bases of his race (Arab), national origin
(Egyptian), sex (male), and religion (Moslem) when, on January 31, 1994,
he was issued a Letter of Demand for $13,975.<1>
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ. Subsequently, on February 7, 1998,
in a telephonic pre-hearing conference, the AJ remanded the case to the
agency, to be held in abeyance pending the decision of an Arbitrator.
Complainant was informed that he had 30 days after receipt of the
Arbitrator's decision to request that his case be returned to the EEOC for
assignment of an AJ. The Arbitrator's decision was rendered on June 14,
1999, and as a result, the Letter of Demand was purged from the file.<2>
On March 16, 2001, the agency issued a final decision.
In its FAD, the agency first dismissed the case as moot because
complainant was made whole through the grievance process. The FAD
additionally dismissed the case as a collateral attack on a grievance
decision. The FAD then proceeded, nevertheless, to address the merits
of the complaint. The FAD found that complainant failed to establish a
prima facie case of discrimination because he failed to demonstrate that
similarly situated employees outside of his protected groups were treated
more favorably. The FAD, however, assumed arguendo, that complainant
did establish a prima facie case, and then concluded that management
articulated legitimate, nondiscriminatory reasons for its action.
Specifically, complainant was issued the Letter of Demand because he
was remiss in his financial obligations to secure registered mail. As a
result, the agency incurred a loss of $13,975 when the registered mail
disappeared. The FAD noted that there was no question that complainant
had responsibility for the missing registered pieces at the time they
disappeared from the counter. The FAD then concluded that complainant
failed to establish that the agency's reasons were pretextual. Complainant
makes no contentions on appeal. The agency requests that we affirm
its FAD.
As this is an appeal from a FAD issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de
novo review by the Commission. 29 C.F.R. � 1614.405(a). We begin
by noting that we do not find that the instant complaint is moot,
nor that it constitutes a collateral attack on a grievance decision.
We, therefore, address the merits of the complaint. To prevail in a
disparate treatment claim such as this, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish
a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination on the alleged bases, we turn to the agency to articulate
legitimate, nondiscriminatory reasons for its action. The Postmaster
(P1) states that he issued complainant the Letter of Demand due to
complainant's financial obligation to the United States Postal Service.
See Affidavit B. The Letter of Demand states that the reason for its
issuance was complainant's failure to �exercise proper care and provide
adequate security for the hold-over registered pieces.� Exhibit 4;
see also Exhibit 6.
We now turn to complainant to establish that more likely than not, the
agency's reasons are pretext for discrimination. In his affidavit,
complainant asserts that management was remiss in their obligations
because the supervisor (S1) was not present during the close out, which
caused complainant to have to �hold down the office� and management
never corrected the normal work practice of leaving registered mail out
during closings. Complainant contends that discrimination is the real
reason he was accused of stealing from the registry bag. Even assuming,
arguendo, that complainant was wrongly accused in the instant matter, the
Commission finds that complainant has not established by a preponderance
of the evidence that the agency's reasons for issuing the Letter of
Demand are pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
July 5, 2002
__________________
Date
1 Complainant alleges reprisal for prior EEO activity in his affidavit
(Affidavit A). However, the record reveals that complainant did not raise
this basis during the counseling process, nor in his formal complaint.
2 The record reveals that complainant failed, within 30 days after receipt
of the Arbitrator's decision, to request that his case be returned to
the EEOC for assignment of an AJ.