01a54097
11-22-2005
Sandor Gubi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandor Gubi v. United States Postal Service
01A54097
November 22, 2005
.
Sandor Gubi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54097
Agency No. 1A-078-0015-03
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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 an Electronics Technician at the agency's West Jersey P&DC
facility in Whippany, New Jersey. Complainant sought EEO counseling and
subsequently filed a formal complaint on September 11, 2003, alleging
that he was discriminated against on the bases of religion (Jewish),
disability (diabetes)<1>, and reprisal for prior EEO activity when:
(1) in March 2003 he was ordered to undergo a fitness for duty
examination (FFD);
on March 10, 2003 he was issued a Notice of Fourteen Day Suspension;
on December 16, 2002, he was issued a Notice of Seven Day Suspension;
in November 2002, his manager (RMO: religion and disability unkown)
made inappropriate religion-based comments;
in November 2002, complainant was required to work on Thanksgiving Day;
on an unspecified date his request for Family and Medical Leave Act
leave was denied;
on an unspecified date he was threatened with removal; and
on an unspecified date his request for a reasonable accommodation
was denied.
In December 8, 2003, the agency dismissed claims 2, 4, 5, 6, 7, and
8, and accepted claims 1 and 3 for investigation. Specifically, the
agency found that: claim 2 had been the subject of a previous settlement
agreement; regarding claims 4 and 5, complainant had failed to timely
contact an EEO Counselor; and regarding claims 6, 7 and 8, the claims
were insufficiently precise. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ subsequently dismissed complainant's hearing request due
to complainant's failure to respond to a Scheduling Order, and remanded
the case to the agency for the issuance of a Final Agency Decision (FAD).
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disparate treatment because he failed to identify
otherwise similarly situated employees outside of complainant's classes
who were treated differently. The agency further found that complainant
failed to establish that he was an individual with a disability under
the Rehabilitation Act, and failed to establish a nexus between his prior
EEO activity and the agency's actions. Finally, the agency found that,
assuming arguendo that complainant established a prima facie case,
the agency articulated legitimate, nondiscriminatory reasons for its
actions and that complainant failed to establish pretext. Specifically,
the agency found that complainant was scheduled for a FFD because he
was having difficulty seeing and was demonstrating irrational behavior,
and that he was issued a seven-day suspension for being AWOL on three
occasions.
On appeal, complainant contends that the AJ erred in dismissing his
hearing request on the grounds that his admitted failure to respond to the
AJ's Scheduling Order does not amount to contumacious conduct. However,
complainant raises no new arguments addressing the agency's findings.
The agency requests that we affirm its FAD.
Regarding the AJ's dismissal of complainant's hearing request, we note
that an AJ may deny a complainant's hearing request as a sanction
for failure to cooperate pursuant to the provisions of 29 C.F.R. �
1614.109(f)(3). See Hale v. Department of Justice, EEOC Appeal
No. 01A03341 (December 8, 2000). Complainant cites Reed v. United
States Postal Service, EEOC Appeal No. 01A05039 (January 3, 2001),
for the proposal that a complainant's failure to be available for a
pre-hearing conference does not amount to contumacious conduct. We note,
however, that in the present case the AJ merely dismissed complainant's
hearing request, remanding the matter back to the agency for a decision
on the merits. Reed, on the other hand, involved an AJ dismissing
a complainant's entire complaint, with no adjudication on the merits
by the agency. While we recognize that the AJ's Order may be open to
confusion because it states both that the complaint was being dismissed as
well as stating that the hearing request was being dismissed, it is clear
from the record that it was merely the latter that the AJ intended, and
complainant did in fact receive a decision on the merits from the agency.
Regarding claims 2, 4, 5, 6, 7, and 8, we find such claims were correctly
dismissed for the reasons provided by the agency above.
Regarding claims 1 and 3, we find that we need not address whether or not
complainant established a prima facie case because we find the agency
articulated legitimate, nondiscriminatory reasons for its actions.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). RMO averred that he requested a FFD for
complainant �based on his irrational behavior. . . . [Complainant]
had recently received two letters of suspension within four months.
[He] has acted in a violent manner . . . [and] was removed from the
facility. A coworker . . . [reported] fearing [complainant]. And last,
[complainant] has difficulty seeing. For his safety and those around him
I did not want him working on moving machinery.� Report of Investigation
(ROI) Affidavit B, p. 2. Complainant does not dispute such statements
and we thus find the FFD to have been job-related and consistent with
business necessity. See 29 C.F.R. � 1630.14(c) and EEOC Policy Guidance:
Disability-Related Inquiries and Medical Examinations of Employees Under
the Americans With Disabilities Act (July 27, 2000), pp. 15-16.
Regarding the seven-day suspension, the suspension notice states that
complainant was charged with being AWOL on three occasions, and with
unacceptable conduct when he called in and left a telephone message on
Thanksgiving Day explaining why he was late, and subsequently changed
his explanation when he was confronted with the evidence on the recorded
telephone message. See ROI, Exhibit 7. RMO averred that background
noise on the telephone message indicated that complainant was not stuck
in traffic as he claimed, but was at a party. Affidavit B, pp. 2-3.
Complainant has failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext
for discrimination. In reaching this conclusion, we note that
complainant does not deny any of the charges alleged in the seven-day
suspension notice. Instead, he states that the seven-day suspension was
discriminatory because he was suspended �for a mistake in not ensuring
that the RCR was turned on.� ROI, Affidavit A, p.2. Complainant further
avers that similarly situated co-workers who made allegedly similar,
if not more egregious, work-related errors received more lenient
treatment. Id. Even assuming arguendo the truth of such statements,
complainant has not established pretext because he was not disciplined
for a work-related error but for being AWOL and for unacceptable conduct.
Regarding the FFD, complainant merely states that the examination did
not include a full examination of his eyesight. Id. p. 1.
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
__________________
Date
1For purposes of this decision the Commission
assumes without finding that complainant is an individual with a
disability. 29 C.F.R. � 1630.2(g)(1).