0120121352
07-24-2012
Darik J. Muhammad, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Darik J. Muhammad,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121352
Agency No. 1G-771-0028-11
DECISION
Complainant timely filed an appeal from the Agency's January 5, 2012 final decision 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. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the appeal. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full Time Mail Handler at the Agency's Beaumont Processing and Distribution facility in Beaumont, Texas.
The record reflects that Complainant requested pre-complaint processing on June 6, 2011. On July 15, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for his prior protected EEO activity when:
1. On May 16, 2011, Complainant was issued a 14-Day Suspension for Failure to Follow Instructions; and
2. Complainant was subjected to harassment when his requests for leave were denied on February 8, 2010 and February 17, 2010.
The record reflects that Complainant has prior EEO activity and that Complainant's supervisor and the Plant Manager averred that they were aware of Complainant's previous EEO activity. The record further reflects that the May 16, 2011 suspension was issued within the same week that Complainant filed a grievance.
The supervisor averred that he issued the suspension because he believed that Complainant had been absent from his assigned work area and failed to follow his instruction to go to the supervisor's office. The record is disputed as to whether Complainant was absent from his assigned work area, but Complainant concedes that he refused to go to the office, as instructed, even after a union representative was brought into the office. The record also reflects that the suspension was subsequently reduced to a Letter of Warning.
In its decision, the Agency noted that it dismissed one of Complainant's allegations. It accepted claim one, but dismissed the second allegation for untimely EEO counselor contact and for failure to allege actions sufficient to state a claim of harassment.
The Agency then found that Complainant had not established a prima facie case of retaliation, because Complainant failed to show a nexus between the suspension and his prior activity in 2009. In addition, the Agency reasoned that, assuming that Complainant established the elements of his case, he failed to show that the Agency's explanation (failure to follow an instruction) was a pretext for discrimination.
On appeal, Complainant asks the Commission to appoint an attorney for him. He states that the suspension was procedurally defective and unwarranted. He questions the truthfulness of the witnesses.
In addition, and to further support his allegation in this complaint, Complainant includes a new discrimination claim, indicating that the Agency denied his September 10, 2011 request for Leave without Pay. Complainant accuses the Agency of intentionally delaying the delivery of his mail. He includes a February 9, 2012 acknowledgement from the Beaumont, Texas Postmaster, who apologized to Complainant for the delay in the delivery of the Agency's November 16, 2011 package. Complainant states that he did not receive the report of investigation and notice of his rights until January 19, 2012. Complainant did not challenge the Agency's dismissal of his second allegation.
ANALYSIS
As this is an appeal from a decision issued without a hearing, the Agency's decision is subject to de novo review by the Commission. This requires that the Commission examine the record without regard to the previous factual or legal determinations and that the Commission issue its decision based on the Commission's own assessment of the record and its interpretation of the law.
Initially, we note Complainant's request for the appointment of an attorney. The Commission is unable to grant this request, because the Commission does not provide attorneys to assist either party.
To prevail in a disparate treatment claim such as this, Complainant would have to show that the Agency subjected him to an adverse employment action under circumstances that would support his claim of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). We recognize that the Agency's issuance of a 14-Day Suspension after his EEO activity and filing of a grievance supports an inference of retaliation.
This prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 0595042 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Here, Complainant disagrees with the Agency's recitation of some of the facts in the decision. Specifically, he maintains that the union representative was not the union steward, that one official lied when she said she was unaware of his prior EEO activity, that the other witnesses are perjuring themselves to cover for each other, and that the Plant Manager was not present during the situation that lead to the proposed suspension. Assuming that to be true, that does not prove that the Agency's stated reason for issuing the suspension (misconduct when Complainant failed to follow the instruction to report to the office) was a pretext for discriminatory animus. Complainant does not dispute that he refused to follow the instruction to report to the supervisor's office. Moreover, the record does not clearly reflect that the deciding official was aware that Complainant was not away from his assigned area and had completed the task that the official had assigned to Complainant. In this case, Complainant failed to show that the Agency's stated reason was a pretext for unlawful discrimination.
Further, we note that Complainant includes a new allegation on appeal. He alleges that the Agency retaliated against him when it denied his September 10, 2011 request for leave without pay. His request noted that this request was for a religious holiday. Complainant is advised that if he wishes to pursue, through the EEO process, an additional reprisal and religious accommodation claim that he raised for the first time on appeal, he should initiate contact with tan EEO Counselor within 15 days after he receives this decision. The Commission advises the Agency that if Complainant seeks EEO counseling regarding the new claim within the 15-day period, that claim shall be deemed timely filed. See Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
We are troubled, however, by Complainant's assertion that the Agency intentionally delayed the delivery of the report of investigation in order to cause Complainant to miss the date to respond to request a hearing. We remind the Agency of its obligation to make all of its actions free of unlawful discrimination and reprisal.
After a review of the record in its entirety with regard to the subject 14-Day Suspension, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 tends 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
July 24, 2012
__________________
Date
2
0120121352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121352