01a50445
01-31-2005
Omar M. Rana, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Omar M. Rana v. Small Business Administration
01A50445
January 31, 2005
.
Omar M. Rana,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A50445
Agency No. 05-03-025
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 Loan Specialist in the agency's Office of Disaster Assistance,
Area 2 facility in Atlanta, Georgia. Complainant sought EEO counseling
and subsequently filed a formal complaint on May 21, 2003, alleging that
he was discriminated against on the bases of race (Asian) and national
origin (Pakistani) when:
(1) on November 5, 2002, he received a formal Letter of Reprimand;
on November 15, 2002, he was notified that he was not selected for
the Loan Specialist, GS-1165-12 position under vacancy announcement
number DEU-03-001;
on January 13, 2003, he received a Letter of Warning; and,
on January 21, 2003, he was terminated from his position.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that, in regard to claims one, three
and four, complainant failed to establish a prima facie case of race
and/or national origin discrimination. The agency also concluded that,
even if complainant did establish a prima facie case of discrimination,
there were legitimate, nondiscriminatory reasons for its actions.
The agency further concluded that complainant did not show that any of
these reasons were a pretext for discriminatory animus.
In regard to claim two, the agency concluded that complainant did
establish a prima facie case of race and national origin discrimination.
The agency also concluded that there was a legitimate, nondiscriminatory
reason for its decision not to select complainant. Namely, complainant
had been disciplined for misusing the government-issued credit card for
impermissible purchases. The agency further concluded that complainant
did not show that this reason was a mere pretext for discriminatory
animus.
On appeal, complainant makes no contentions. The agency did not file
a response to complainant's appeal.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination or retaliation. Id.
The Commission agrees with the FAD's conclusion that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discriminatory animus. In reaching
this conclusion, we note that the record evidence indicates that other
than complainant's own assertions, there is no evidence that any of the
agency's actions were based on any of his protected classes. Therefore,
after a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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
January 31, 2005
__________________
Date