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.