0120120977
05-31-2012
Abdullah Al-Amin, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Abdullah Al-Amin,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120120977
Hearing No. 520201000400X
Agency No. 1A126003409
DECISION
On December 14, 2011, Complainant filed an appeal from the Agency's September 15, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Mid-Hudson facility in Newburgh, New York.
On December 9, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), religion (Muslim), age (55), and reprisal for prior protected EEO activity:
1. On or about August 17, 2009, Complainant was issued a notice of 7-day suspension;
2. On or about October 6, 2009, Complainant was issued a notice of 14-day suspension; and
3. On September 1, 2009, Complainant was interviewed and subsequently marked ineligible for the position of Electronic Technician, (ET).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 1 and June 2, 2011, and issued a bench decision on June 2, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
We note here that the parties in this matter were unable to stipulate to the issues which required a decision. As a result, based upon the representations made by the parties as well as consideration of the report of investigation, the Administrative Judge identified the issues to be decided in this case.
7-Day Suspension
The record indicates that on August 17, 2009, Complainant was issued a 7-day suspension. The August 17, 2009 letter described what the Agency determined to be unacceptable behavior on Complainant's part with respect to a heated discussion between Complainant and his supervisor. According to the Agency, during the work-related discussion on July 29, 2009, Complainant repeatedly wagged his finger in the face of his supervisor and yelled "are you trying to intimidate me?" referring to his supervisor. The Agency further indicated that Complainant's behavior continued to the point that he had to be ordered off the workroom floor. In hearing testimony, Complainant denied the Agency's allegation that he wagged his finger and yelled, and instead contended that his supervisor created an unsafe work environment when he twice dropped a mail bin on a table under which Complainant was working at the time. In addition to arguing that the conduct of his supervisor with respect to the mail bin created a safety concern, Complainant further testified that he, his supervisor and the individual identified by Complainant as the responsible management official, (RMO), retreated to the tour office in order to continue the discussion. According to Complainant, his supervisor made the comment "forget about it, let's go forward." The record further indicates that it was the decision of the RMO thereafter, to issue the 7-day suspension to Complainant. Specifically, the RMO testified that on the day of the incident, he was summoned to the work floor via walkie-talkie by Complainant's supervisor. The RMO indicates that he observed Complainant and his supervisor engaged in an intense discussion but acknowledged that he did not hear any shouting at the time that he approached the two. Together with Complainant and his supervisor, the RMO went to the tour office in order to continue the discussion in private and off the work floor. Complainant's supervisor testified that there was no resolution and he left the office leaving Complainant and the RMO behind. The RMO acknowledges that Complainant supervisor did make a comment with words to the effect, "let's just forget about it." Complainant's further testified that the July 29 incident was disturbing because Complainant's behavior was disruptive and caused an unwarranted disturbance on the work floor. He further indicates that Complainant initially refused to leave the work floor when ordered to do so. In response to Complainant's refusal to leave the work floor on July 29, Complainant's supervisor called the RMO to intervene. According to the record, the RMO further reported the incident to his manager who instructed the RMO to initiate a formal investigation into the incident. Based upon that investigation, RMO issued Complainant the August 17, 2009 suspension letter based on Complainant's inappropriate conduct on July 29, 2009.
14-Day Suspension
The record further indicates that on October 6, 2009, Complainant was issued a 14-day suspension letter regarding an incident which occurred on September 2, 2009. Specifically, on September 2, 2009, Complainant was ordered to fix a flyer cancelling machine. However, Complainant elected not to repair the machine and failed to report his failure to the RMO. At a pre-disciplinary meeting on September 29, 2009 regarding the September 2, incident, Complainant contended that he should not have been punished for the incident because another employee should have been held accountable for repairing the flyer cancelling machine, the co-worker who identified Complainant as having failed to repair the machine, lied. Complainant further contends that he did not receive proper training in order to fix the cancelling machine. The RMO found Complainant's explanations unreasonable and not convincing. Accordingly, Complainant was issued a 14-day suspension for failure to follow instructions.
Electronic Technician Position
The record indicates that the Agency's procedure to determine the eligibility status for the ET position consisted of a written test followed by a personal interview with all of the candidates. The record further indicates that on September 1, 2009, Complainant was interviewed for the ET position in order to determine his eligibility. The record indicates that Complainant passed the written portion of the certification process, but failed the interview portion. Specifically, the Agency found that Complainant provided vague answers to standard questions from the interview panel. At times, the Agency indicates, Complainant failed to provide and answer at all. Complainant's only argument regarding the Agency's conclusion that he failed the interview portion of the certification process is his bare assertion that one of the panel members was not qualified to interview Complainant because she served as the concurring official on Complainant's prior suspension.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on race, religion and age by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the final Agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 31, 2012
__________________
Date
2
0120120977
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120977