Ahmad A. Noorulhaqq, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 2009
0320090085 (E.E.O.C. Oct. 28, 2009)

0320090085

10-28-2009

Ahmad A. Noorulhaqq, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ahmad A. Noorulhaqq,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 0320090085

MSPB No. DA0752090160I2

DECISION

On September 17, 2009, petitioner filed a timely petition with the

Equal Employment Opportunity Commission asking for review of a Final

Order issued by the Merit Systems Protection Board (MSPB) concerning

his claim of discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

Petitioner alleged that he was discriminated against on the basis of

reprisal for prior protected EEO activity under a statute that was

unspecified in the record when he was removed from his position with

the agency, effective December 5, 2008.

A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued

an initial decision finding no discrimination. Petitioner did not seek

review by the full Board, filing the instant petition instead. On appeal,

petitioner argues that the AJ erroneously barred one of petitioner's

witnesses from testifying at the hearing. Petitioner includes a notarized

statement by the witness, a coworker (CW). Petitioner maintains that the

notarized statement contradicts statements made by management officials

before the AJ.

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a decision that makes

determinations on allegations of discrimination. 29 C.F.R. � 1614.303

et seq. The Commission must determine whether the decision of the

MSPB with respect to the allegation of discrimination constitutes a

correct interpretation of any applicable law, rule, regulation or policy

directive, and is supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c).

The record shows that petitioner was removed for engaging in unacceptable

conduct and having unacceptable performance, both on September 29, 2008.

Specifically, the agency maintains that on the date in question, two

management officials (RMOs 1 & 2) were conducting street observations of

agency personnel. They approached petitioner at the end of his route and

challenged him about undelivered mail in his vehicle. Petitioner then

became verbally abusive and uttered profanities and despite being told to

turn off his vehicle, petitioner drove off. He was stopped not too far

away and again told to surrender the keys but again drove off before being

stopped a second time and surrendering the vehicle. Petitioner testified

that he did indeed use profanity towards RMO1 & 2, and that he did drive

away, but denies the agency's contention that he sped off, or that he

tried to run over RMO1 & 2, or that they were standing near the vehicle

when he drove off, or that he was given a direct order to turn off his

vehicle and get out. On appeal, petitioner further maintains that CW's

notarized statement contradicts RMO1 & 2's statements that they also

conducted a street observation of CW's vehicle. CW's statement denies

that either RMO1 or 2 conducted a street observation of his vehicle.

See Petitioner's Appeal Brief.

Based upon a thorough review of the record, it is the decision of the

Commission to concur with the final decision of the MSPB finding no

discrimination. Even assuming, for the sake of argument, that RMO1 &

2 did not conduct a street observation of CW's vehicle, such a fact

is immaterial to the facts at issue in the instant case. The agency

has articulated a legitimate, nondiscriminatory reason for its action

and petitioner has not shown that the agency's articulated reason is

a pretext for reprisal. The Commission finds that the MSPB's decision

constitutes a correct interpretation of the laws, rules, regulations,

and policies governing this matter and is supported by the evidence in

the record as a whole.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, within

thirty (30) calendar days of 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.

RIGHT TO REQUEST COUNSEL (Z1008)

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

October 28, 2009

__________________

Date

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0320090085

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0320090085