Mohan Raj, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.

Equal Employment Opportunity CommissionFeb 15, 2005
01a45621 (E.E.O.C. Feb. 15, 2005)

01a45621

02-15-2005

Mohan Raj, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.


Mohan Raj v. United States Postal Service

01A45621

February 15, 2005

.

Mohan Raj,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Western Area)

Agency.

Appeal No. 01A45621

Agency No. 4E-800-0585-03

Hearing No. 320-2004-00216X

DECISION

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

concerning his equal employment opportunity (EEO) 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission AFFIRMS the agency's final

order.

The record reveals that complainant, a PTF City Carrier at the agency's

Fletcher Station facility, filed a formal EEO complaint on August 9,

2004, alleging that the agency discriminated against him on the bases of

race (East Indian) and age (D.O.B. 10/18/48) when on June 4, 2004, the

agency terminated him during his probationary period. 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.

The AJ dismissed the complaint concluding that it did not contain

any genuine issue of material fact as to complainant's allegations of

discrimination. He did not discuss whether complainant had established a

prima facie case of age and race discrimination, but accepted the agency's

unopposed motion for a decision with a hearing. The AJ found that

�the record contains sufficient uncontroverted evidence to decide this

complaint without a hearing.... Complainant has failed to establish that

the Agency discriminated against Complainant.� Ruling on Complainant's

Requests for Assistance with Discovery (Motion to Compel Discovery),

Decision Granting Summary Judgment, and Notice, at 4. The agency's

final order dated August 2, 2004, implemented the AJ's decision.

On appeal, complainant restates the contentions he made in his complaint,

and again points to a younger, Caucasian comparative who had been

terminated during his probationary period, but was later reinstated.

See Request for Appeal.

The Commission's regulations allow an AJ to issue a decision without

a hearing when he or she finds that there is no genuine issue of

material fact. See 29 C.F.R. � 1614.109(g) (2004). This regulation is

patterned after the summary judgment procedure set forth in Rule 56 of

the Federal Rules of Civil Procedure. The U.S. 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. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (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. See 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. See 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, 322-23 (1986);

Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact

is "material" if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, the

issuance of a decision without a hearing is not appropriate. Similarly,

an AJ may not issue a decision without a hearing if he or she actually

has to find facts first to do so.

After a careful review of the record, the Commission finds that the grant

of decision without a hearing was appropriate, as no genuine dispute of

material fact exists. The Supreme Court has mandated that, at a minimum

without direct evidence, a complainant alleging race or age discrimination

must present a prima facie claim of disparate treatment. See St Mary's

Honor Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). To do so, the complainant

must present facts that, if unexplained, reasonably give rise to an

inference of discrimination, i.e., that a prohibited consideration was a

factor in an adverse employment action. Furnco Constr. Corp. v. Waters,

438 U.S. 567 (1978). For instance, evidence that the same management

officials afforded more favorable treatment to an employee outside

of complainant's protected groups under similar circumstances is

significant. See id. However, in order for such comparative evidence

to be probative of discrimination, all relevant aspects of complainant's

employment must be nearly identical to those of the comparative employee.

O'Neal v. U.S.P.S., EEOC Request No. 05910490 (July 23, 1991).

Upon establishing a prima facie case, the burden of production falls to

the agency to establish a nondiscriminatory reason for the challenged

action. Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at

802. If the agency articulates a nondiscriminatory reason, any prima

facie inference drops from the case. Hicks, 509 U.S. at 507, 510-11.

The complainant then must prove by a preponderance of the evidence that

the proffered explanations are a pretext for discrimination. See id. at

511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

Here, complainant failed to establish a prima facie case of age and

race based discrimination. The facts he presents simply do not raise

an inference that his age and race were the basis of his termination.

Furthermore, the comparative he presents as evidence of disparate

treatment is inadequate. The younger, Caucasian co-worker who had been

terminated during his probationary period but later rehired, did not share

a similar work history as complainant. The record reveals that this other

worker had been terminated because he had failed to report an on-the-job

injury, and was later rehired due to EEOC intervention. As attested by

an agency manager in that other case, the worker's reinstatement was a

result of specific facts and circumstances in that particular case.

Nevertheless, assuming arguendo, that complainant had established a

prima facie case of race and age discrimination, complainant failed to

rebut the agency's nondiscriminatory reason for terminating complainant.

The agency presented facts showing that, although the agency provided

complainant with more days of training than most employees, it terminated

complainant because he had failed to meet the requirements of the

position which include, among other things: scanning all required MSP

points; meeting projected daily work hours and quantity requirements,

and following safety rules and regulations. The record is replete with

evidence of complainant's performance deficiencies in this regard.

In response, complainant disagrees with his supervisors' evaluations

of his work and describes how the supervisors created an environment

of fear and intimidation, constantly monitoring his every move on the

job and criticizing his work. Although the situation that complainant

describes may rightfully appear intimidating, it fails to show that his

supervisors acted out of discriminatory animus towards complainant's

protected classes and as a pretext to mask unlawful discrimination.

Accordingly, the Commission finds that the AJ's decision was proper.

Therefore, we AFFIRM the final agency order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

February 15, 2005

__________________

Date