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