0120091559
07-16-2009
Darik Muhammad, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darik Muhammad,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091559
Agency No. 1G-771-0012-08
Hearing No. 460-2008-00139X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 28, 2009 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.
On January 31, 2008, complainant, a Mail Handler assigned to the
Beaumont Processing and Distribution Center in Beaumont, Texas filed
the instant formal EEO complaint. Therein, complainant claimed the
agency discriminated against him on the bases of religion (Islam) and
in reprisal for prior protected activity when:
on December 25, 2007, he was not allowed to work the Christmas
holiday.
Following an investigation by the agency, complainant was given the
choice of either a final agency decision (FAD) or a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case granted the agency's motion for a decision
without a hearing. The AJ found that complainant had not established a
prima facie case of religious discrimination, but that he had established
a prima facie case of reprisal discrimination. The AJ further found
that even assuming complainant established a prima facie case on both
bases, the agency articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.
The Commissions regulations allow an AJ to issue a decision without
hearing when he or she finds that there is no genuine issue of material
fact.29 C.F.R � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 245 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id at 255. An issue of fact is "genuine" if the evidence is such
that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-323 (1986). The AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition. See
Petty v. Department of Defense, EEOC Appeal No.0120024206 July 11, 2003).
A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglass Corporation v. Green,
411 U.S. 792 (1973). For complainant to prevail, he must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp
v. Waters, 438 U.S,567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden complainant bears the
ultimate responsibility to persuade the fact finder by preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Center v. Hicks, 509 U.S.502 (1993).
The AJ noted that complainant assigned to Tour 1 signed the volunteer list
to work the 2007 Christmas holiday which was his non-scheduled day. While
making the Christmas schedule, agency management erred in assuming that
complainant had medical restrictions to prevent him from working overtime;
and because complainant had not volunteered the two prior holidays,
agency management did not schedule him. Instead, a senior female mail
handler assigned to Tour 1 was scheduled to work on December 25, 2007,
and she declined to work. After completing his tour on December 24,
2007, complainant informed his supervisor that he volunteered to work
Christmas. In response, his supervisor asked complainant if he would work
on December 25, 2007 and he responded, "I will work if I receive written
apology that [the named female employee who was earlier assigned to work
on December 25, 2007] was scheduled in error." Complainant's supervisor
informed complainant that he (the supervisor) did not have authority
to write an apology. Complainant left the office without responding
that he would work on December 25, 2007. Due to lack of complainant's
lack of commitment and no coverage for Tour 1 another mail handler from
Tour 2 volunteered to work on December 25, 2007.
The AJ properly determined that the agency articulated legitimate
non-discriminatory reason for its actions and that his supervisor
acknowledged the error and apologized for the error and offered
complainant the opportunity to work on December 25, 2007, and that
complainant did not establish that this reason was a pretext for
discrimination.
The AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred. After a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (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
July 16, 2009
__________________
Date
5
0120091559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013