0120092902
11-12-2009
Mikael A. Raheem, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mikael A. Raheem,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092902
Hearing No. 532-2008-00102X
Agency No. 1C-441-0002-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 11, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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 November 17, 2007, complainant, a Casual Clerk at the Cleveland
Airport Mail Center filed the instant formal complaint. Therein,
complainant claimed that he was discriminated against on the basis of race
(African-American) when:
on September 20, 2007, when he reported for duty, his badge
was pulled and management told him to go home due to an
incident that occurred the day before. Subsequently,
complainant was not permitted to return to duty until September
27, 2007.
Following an investigation by the agency, complainant was given the
choice of a final agency decision (FAD) or a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The
AJ issued a decision without a hearing finding no discrimination.
The record reflects that, on September 19, 2007, a full-time Mail
Processing Clerk (Caucasian), who was hearing impaired, reported to the
Supervisor of Distribution Operations that complainant had kicked him;
that he felt threatened by complainant; and that he refused to work
in the same building with complainant. Complainant denied kicking the
other employee and stated that he and the other employee had an argument
about whether a belt on the mail processing machine should be started,
when the other employee left the belt to look for a supervisor.
On September 20, 2007, when complainant's supervisor told complainant that
he was placed in an off-duty status while an investigation of the matter
was completed, complainant became loud and belligerent. The Supervisor
then escorted complainant to the employee entrance. Complainant's
supervisor stated that because of complainant's co-worker's report of an
assault and fear of intimidation and the agency's Zero Tolerance Policy,
she was forced to take action. Further, she noted that that complainant
had received a discussion regarding a prior incident involving another
female employee. Finally, she stated that she could send him home
because, as a casual employee, he had no contractual rights and benefits.
The record indicates that, after an investigation, the Plant Manager
decided not to return complainant to the AMC to work and found a position
in the Cleveland Processing and Distribution Center as he could not
clearly determine fault in the incident.
The Commission's 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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie case inquiry
may be dispensed with in this case, since the agency has articulated
legitimate and nondiscriminatory reasons for it conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). 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, 120 S. Ct. 2097 (2000).
The AJ found that complainant failed to establish a prima facie case
of disparate treatment. The AJ found that complainant is a member of a
protected class based on his race. However, complainant was not able to
demonstrate that he was treated less favorably than similarly situated
individuals who were not members of his protected class. Complainant
alleged that he was subjected to disparate treatment because the white
employee involved in the incident was not similarly sent home during
the investigation. The AJ found, however, that complainant and the white
employee were not similarly situated because they had different rights
due to their different employment statuses. Complainant was a casual
employee, with not contractual rights, while the other employee was
a full-time regular, with contractual rights to remain at work during
the investigation. Moreover, the AJ noted that complainant was accused
of striking another employee in violation of the agency's Zero Tolerance
Policy and had prior confrontations with his fellow employees. The white
employee did not have a disciplinary history. Accordingly, the AJ found
that complainant failed to show that he was treated differently than a
similarly situated person outside his protected group.
The AJ found, additionally, that the agency has articulated a legitimate,
non-discriminatory reason for its actions. Complainant was accused of an
act that violated the agency's Zero Tolerance Policy. The agency, after
an investigation of the alleged incident determined that complainant
should be transferred to another facility on September 27, 2007, because
there was inadequate evidence to support terminating him. The AJ found
that complainant failed to demonstrate that the reasons articulated by
the agency were a pretext for discrimination.
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,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
November 12, 2009
__________________
Date
2
0120092902
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092902
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