Iqbal Siddiqui, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01a00328 (E.E.O.C. Mar. 30, 2000)

01a00328

03-30-2000

Iqbal Siddiqui, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Iqbal Siddiqui, )

Complainant, )

) Appeal No. 01A00328

v. ) Agency No. 4K-220-0115-98

) Hearing No. 100-99-7448X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405). Complainant alleges he was

retaliated against based on prior EEO activity and discriminated against

based on race (Indian), national origin (Pakistani), sex (male), and

disability (herniated disc), when: (1) on May 29, 1998, he was placed on

off-duty status; (2) on June 11, 1998, he was given a pre-disciplinary

interview; and (3) by letter dated June 26, 1998, he was issued a notice

of removal for "improper conduct/verbal altercation/threat." For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time complainant was employed

as a mail processor/clerk at the agency's Manassas, Virginia facility.

Complainant's version of the relevant events is that on May 29, 1998, he

approached his supervisor (S1) to request his paycheck and a form CA-8.

S1 advised him that the check was in the safe and he did not have the

combination. Complainant accused S1 of lying. See Record of Investigation

(ROI) at 27-28 and 137-38. Complainant concedes that he may have used a

loud voice, but only to in order to be heard over mechanical equipment

in the area, and also because he allegedly has a hearing difficulty.

S1 ordered complainant to "hit the clock." An altercation ensued, in

which complainant asked S1 if he thought he (S1) was "God," and "is this

your building?" According to complainant, shortly after he left the

facility, he twice spoke to the police, who allegedly misconstrued his

comments as an implied threat against postal officials, triggering the

subsequent investigative and disciplinary action at issue. Although it

is disputed what complainant said to the police, complainant himself

recounts in his investigative statement that he told the second police

officer with whom he spoke "that there are a few bad managers in the

post office who bring violence inside the post office, not all managers

are bad. I told him I love my job, I don't own any firearms I don't

inten[d] to harm anyone. I told him I just want to make a report with

the proper authorities instead of taking matters into my own hands."

ROI at 167.

Complainant filed a formal EEO complaint with the agency on July 14, 1998,

alleging that the agency had retaliated and discriminated against him as

referenced above. At the conclusion of the investigation, complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). The AJ issued a decision

without a hearing, finding no discrimination, which the agency adopted

as its final decision.

The AJ concluded that complainant failed to establish a prima facie

case of race, national origin, sex, or disability discrimination on

any basis because he failed to demonstrate that similarly situated

comparator employees outside his protected classes were treated more

favorably under similar circumstances.<2> The AJ further concluded

that complainant failed to establish a prima facie case of retaliation,

because he presented no evidence that S1, who had been away on a two-year

detail, was aware of complainant's prior EEO activity, and also because he

presented no evidence indicating any nexus between his prior EEO activity

and the adverse action taken against him. In the alternative, the AJ

concluded that even assuming arguendo complainant had established a prima

facie of retaliation or discrimination, the agency articulated legitimate,

non-discriminatory reasons for its actions, and complainant had failed

to demonstrate that those reasons were a pretext for discrimination.

Finally, the AJ ruled that the agency had not improperly failed to

make certain witnesses available for interviews by complainant's

representative in accordance with the AJ's discovery order, because

complainant's representative had failed to provide the agency with the

requested proffer until two days before the close of discovery.

On appeal, complainant argues, among other things: (1) there were

other employees outside his protected classes who were loud or engaged

in other misconduct but were not disciplined by S1; (2) S1's version

of the events, as recounted in various statements, incorrectly asserts

that complainant approached him requesting only a form CA-8, and did not

refer to his paycheck until he was leaving the building; (3) there had

been a series of recent errors in complainant's paycheck prior to his

altercation with S1, which S1 had failed to correct; (4) the AJ failed to

properly address unsworn statements by various co-workers who overheard

complainant speaking loudly but could not hear what he was saying; (5)

complainant only raised his voice in order to be heard over the machinery;

(6) according to agency procedures, his pre-disciplinary interview should

have occurred within 72 hours of the alleged infraction, rather than

two weeks later; (7) the comparators cited by S1 were issued notices

of removal for different alleged infractions; and (8) complainant was

subsequently reinstated through the union grievance process. The agency

has not filed a brief on appeal.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), we find that the AJ erred in the

method of analysis regarding whether complainant established a prima

facie case of discrimination, but nonetheless reached the correct

result in this case. The AJ erred in reasoning that complainant could

only establish a prima facie case if he identified comparator employees

outside his protected class who were treated more favorably than he was

treated. While comparative evidence is usually used to establish disparate

treatment, complainant need only set forth some evidence of acts from

which, if otherwise unexplained, an inference of discrimination can be

drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).<3>

Nonetheless, after a careful review of the record and applying the correct

standard, the Commission discerns no basis to disturb the AJ's ultimate

conclusion that even assuming arguendo complainant established a prima

facie case of discrimination, he has not met his burden to prove that,

more likely than not, the investigative and disciplinary measures at

issue were motivated by discrimination. In reaching this conclusion,

we note that complainant concedes that he called the police and made

statements which the police construed as an implied threat against

agency officials. While complainant contends that agency officials

have "falsified" what they were told by the police about the gravity of

complainant's alleged threat, complainant has proffered no evidence to

support this bare assertion.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

March 30, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The AJ further concluded that complainant had also failed to establish

a prima facie of disability discrimination because he failed to establish

that he was a qualified individual with a disability within the meaning of

the Rehabilitation Act. We do not reach the issue of whether or not the

AJ correctly found that complainant is not a "qualified individual with a

disability" because, as set forth herein, we conclude that even assuming

arguendo complainant is a "qualified individual with a disability," we

discern no basis to disturb the AJ's ultimate conclusion that complainant

failed to establish discriminatory discipline on any alleged basis.

3Moreover, to the extent complainant has attempted to establish a

prima facie case through comparison with other employees, those he

has identified are, by his own description, not similarly situated.

Specifically, while complainant asserts that several other employees have

engaged in verbal misconduct toward a supervisor and have received less

severe discipline than he did, complainant does not contend that any

of these proffered comparators were the subject of a police report to

the agency regarding potential threats of violence. While complainant

disputes the truth of the police report, he did not proffer any evidence

that the agency had reason to believe the police report was untruthful.

In order for comparative employees to be considered similarly situated,

all relevant aspects of complainant's situation must be nearly identical

to those of the comparative employees. Tolar v. United States Postal

Service, EEOC Appeal No. 01965083 (December 16, 1998) (citing O'Neil

v. United States Postal Service, EEOC Request No. 05910490 (July 23,

1991)). Thus complainant has not identified a similarly situated employee

outside his protected group who was treated more favorably.