01997222
12-20-2000
Mahbubul Hassan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.
Mahbubul Hassan v. USPS
01997222
December 20, 2000
.
Mahbubul Hassan,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01997222
Agency No. 4F-913-0138-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning his complaint of unlawful 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.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that was he was discriminated
against based on race (Asian), color (brown), religion (Muslim), sex
(male), age (over 40 years of age), national origin (Bangladesh), and
retaliation (prior EEO activity) when on August 5, 1998, he was issued
a notice of removal and subsequently removed.
BACKGROUND
The record reveals that during the relevant time, complainant, born May
19, 1954, was employed as a letter carrier at the agency's North Hollywood
Post Office facility in North Hollywood, CA. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on October 7, 1998. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested that the agency issue
a final decision, which was issued August 18, 1999.
In February 1998, complainant complained about an on-the-job injury
and filed a CA-1 Form related to the accident.<2> The District Injury
Compensation Office made an inquiry into complainant's prior injuries.
The inquiry disclosed that complainant made errors in his initial job
application, involving PS Form 2485, Medical Examination and Assessment
(dated November 5, 1993), and also, as part of his reinstatement with
the Postal Service (completed and signed July 14, 1997, and discussed in
more detail, infra); PS Form 4583, Physical Fitness Inquiry for Motor
Vehicle Operators (completed and signed July 14, 1997, as part of his
reinstatement); and PS Form 2591, Application for Employment (completed
and signed September 21, 1993).
Prior to his removal, complainant had engaged in protected activity.
More specifically, in a complaint dated March 24, 1994, complainant,
then a former flexible city carrier (part time) alleged that the agency
discriminated against him on the bases of race (Asian), color (brown),
national origin (Bangladesh), and religion (Muslim), when he was removed
from employment during his probationary period. The Commission found
that complainant proved, by a preponderance of the evidence, that he
was discriminated against because of race, color, and national origin,
as alleged. Complainant was ordered reinstated, inter alia, to his
position retroactive to February 15, 1994. EEOC Appeal No. 01955052,
Hassan v. USPS (May 5, 1997).
It appears that PS Form 2485 (signed July 14, 1997), supra, was required
by the agency before his reinstatement, and that the agency considered
this to be relating to a job application.
In its FAD, the agency concluded that complainant was justifiably removed
for falsification of the records, relating to his job application(s).
The agency found that complainant failed to honestly disclose the correct
information on his job application(s), and thus that the agency was
prohibited from making a sound decision when hiring him. Accordingly,
the agency concluded that it did not discriminate against complainant
based on any of the complainant's alleged grounds.
On appeal, complainant contends that he was removed based on retaliation
for his prior EEO activity, refers to an incident of complainant's alleged
misconduct not relied upon by the agency for the removal, and points out
that he knew from another employee that having won his reinstatement case
that the agency would retaliate. The agency requests that we affirm its
FAD, emphasizing that complainant had falsified his job application.
FINDINGS AND ANALYSIS
In general, claims alleging disparate treatment under Title VII are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662
F.2d 292 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases). A complainant
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 a prohibited reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
In order to establish a prima facie case of discrimination, complainant
may show that he is a member of a protected group and that he was
treated less favorably than other similarly situated employees outside
his protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
The Commission agrees with the agency that complainant failed to establish
that his removal was discriminatory. Assuming arguendo that complainant
established a prima facie case of discrimination, he failed to establish
by a preponderance of the evidence (more likely than not)
that the agency's articulated nondiscriminatory explanation for its
action was a pretext for discrimination.
As previously indicated, the agency submits that complainant's removal
resulted from a determination that complainant had falsified his job
application(s) in numerous areas, and that the complainant's failure to
honestly disclose information on his job application(s) prevented the
agency from making a sound hiring decision. In evaluating the merits of
the agency's articulated nondiscriminatory explanation, complainant does
not dispute that numerous errors were made. Indeed, the agency prepared
a lengthy and detailed Notice of Removal Memorandum, dated August 3,
1998, delineating the many errors made by complainant in PS Forms
2485, 4583, and 2591.<3> Complainant appears to essentially accept
the Notice of Removal Memorandum's findings, at least with respect to
his reporting of inaccurate information. Complainant, however, argued
before the agency that the mistakes were not intentional, but does not
otherwise adequately explain much of the inaccurate information.<4>
Given the number of errors, their significance, and complainant's lack
of additional adequate explanation, we are unpersuaded by the credibility
of complainant's argument.<5>
The agency has also indicated that it has removed numerous other employees
for falsification of records. An affidavit from complainant's Postmaster
identified six individuals who had been removed for falsification of
records. Complainant does not dispute this. Nor has complainant suggested
that the agency has treated some employee or employees, who falsified
records, more favorably in terms of discipline. In addition, falsification
goes to questions of honesty and integrity, and the agency's vigorous and
consistent enforcement of such values cannot be questioned. Furthermore,
the agency explained that after on-the-job injuries are reported, it is
common practice in the district to review the person's prior injuries.
Finally, it is complainant's burden to establish by a preponderance
of the evidence (more likely than not) that the agency's articulated
nondiscriminatory explanation for its action was a pretext for
discrimination. In the Commission's view, complainant has failed to
meet his burden to show that the agency's articulated nondiscriminatory
explanation was a pretext. See also Enforcement Guidance on St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993) (April 12, 1994).
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 20, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record indicates that the injury involved one of his fingers (nail
avulsion and contusion), in addition to one of his hands (contusion)
and knees (abrasion and contusion). His physician released complainant
to modified duty, recommending that the complainant not use the injured
finger. The treating physician noted the injury occurred on February 21,
1998.
Complainant seems to make much of the fact that the Postmaster thought
the injury occurred on February 2, 1998. Any confusion may have
occurred due to the fact, that there is a certification from another
of complainant's physicians dated February 2, 1998, indicating that
complainant would be unable to return to work because of �injury/illness�
from February 2, 1998, through February 8, 1998. Indeed, it appears,
as of February 2, 1998, complainant had not reported for work since
January 27, 1998.
3 For example, complainant responded in PS Form 2485, Medical Examination
and Assessment (July 14, 1997), that he had never been treated for any
medical condition other than minor illness, or had any operations.
To the contrary, the agency found that complainant had numerous
extended medical-related absences from work, as well as numerous
periods of temporary disability, in addition to numerous significant
injuries and medical problems of both a physical and mental nature.
Complainant also responded in PS Form 4583, Physical Fitness Inquiry
for Motor Vehicle Operators, that he had never had any nervous or mental
trouble of any kind. The agency pointed out that complainant's medical
records reflected a history of significant mental health problems and
symptoms. Complainant further responded in PS Form 2591, Application for
Employment, that he had never been fired from any job for any reason.
The agency found that complainant had been terminated from a private
sector position in January of 1993. The agency pointed out that an
Unemployment Appeals Board decision of an Administrative Judge upheld
complainant's subsequent disqualification of benefits based on a finding
of misconduct by the complainant.
4 Before issuing the Notice of Removal Memorandum, the agency gave
complainant an opportunity to respond to all of the instances of
the allegedly incorrect information. In many instances, complainant
essentially responded that it was a long time ago, maybe he forgot,
he could not recall, or that he could not remember at the time.
5 It appears, however, that some of the questions in PS Forms 2485
and 4583 were disability-related inquiries. Prior to an offer of
employment, an employer may not ask any disability-related questions or
require any medical examinations, even if they are related to the job.
Nevertheless, after an applicant is given a conditional job offer, but
before he or she starts work, an employer may ask disability-related
questions and conduct medical examinations, regardless of whether they
are related to the job, as long as it does so for all entering employees
in the same job category. After employment begins, an employer may
make disability-related inquiries and require medical examinations
only if they are job-related and consistent with business necessity.
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act
(ADA) (July 26, 2000). Generally, a disability-related inquiry or
medical examination of an employee will be regarded as �job-related and
consistent with business necessity� when an employer �has [a] reasonable
belief, based on objective evidence, that: (1) an employee's ability to
perform essential job functions will be impaired by a medical condition;
or (2) an employee will pose a direct threat due to a medical condition.�
Id. at 15-16. Complainant does not argue in his complaint or on appeal,
that the agency submitted improper disability-related inquiries, and
therefore we do not address this matter.