0120093285
06-17-2011
Ali I. Mousa, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Ali I. Mousa,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120093285
Agency No. 1B-025-0023-08
DECISION
On July 27, 2009, Complainant filed an appeal from the Agency’s June 23,
2009, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 Commission accepts the
appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s decision finding no discrimination.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against
on the bases of his race, color, religion, national origin, sex, age,
and reprisal when he was accursed of operating a forklift in an unsafe
manner which ultimately led to the suspension of his driving privileges
until he became recertified.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Mail Handler at the Agency’s Springfield Logistics
and Distribution Center facility in Springfield, Massachusetts.
On September 16, 2008, a coworker completed a “Near Miss Report: which
indicated that Complainant had driven the forklift in an unsafe manner.
Complainant’s supervisor conducted an investigation and found that
based on the evidence, Complainant had not violated safety procedures.
The supervisor also noted that the coworker who filed the complaint did
not get along with Complainant; therefore, she recommended that a safety
review be conducted quickly. On September 23, 2008, another coworker
filed a Near Miss Report against Complainant.
According to the record, Near Miss Reports are reviewed by the 1767 Review
Committee (RC). The Near Miss report pertaining to the September 16,
2008 incident was considered by the RC, but they were unable to resolve
the situation it was escalated to the Safety and Health Committee.
The Safety and Health Committee decided that the matter would be resolved
by retraining Complainant on safe operating procedures. The training was
estimated to take approximately twenty minutes to complete. Complainant
was notified about the Safety and Health Committee’s decision, but he
refused to attend the training. He indicated that since the September
16th incident investigation was based on false report information, he
should not be required to attend retraining. Subsequently, he was
informed on November 18, 2008, that his driving privileges had been
suspended and that he would no longer be allowed to operate a forklift,
until he became recertified. Driving a forklift was not an essential
function of Complainant’s position.
On December 29, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
national origin (Arab), sex (male), religion (Muslim), color (Black), age
(43), and reprisal for prior protected EEO activity when on September
16, and September 23, 2008, he was accused of operating a forklift in
an unsafe manner and was subsequently informed on November 18, 2008,
that his driving privileges had been suspended and that he would no
longer be allowed to operate a forklift until he became recertified.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged. The Agency determined that assuming arguendo that Complainant
established a prima facie case of discrimination as to all bases,
the Agency articulated legitimate nondiscriminatory reasons for its
actions, i.e., training and recertification was required to ensure the
safest possible work environment. The Agency maintained that none
of Complainant’s protected bases were considered and asserts that
employees outside of Complainant’s protected bases were not treated
more favorably. The Agency found that Complainant failed to show that
the Agency’s reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant makes no new contentions on appeal. The Agency asks that
the FAD finding no discrimination be affirmed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, Complainant generally
must first establish a prima facie case of discrimination. Walker
v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003);
Ornelas v. Dep’t of Justice, EEOC Appeal No. 01995301 (Sept. 26,
2002). The burden then shifts to the Agency to articulate legitimate,
non-discriminatory reasons for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at
256; Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997); Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351
(Dec. 14, 1995).
The Commission finds that the Agency properly issued a finding of no
discrimination. Specifically, we find that even if we assume arguendo
that Complainant established a prima facie case of discrimination as
to all bases, the Agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that based on Complainant’s Near
Miss Report record, training was required and, because he failed to
attend, recertification was needed. While the Commission appreciates
Complainant’s contention that he did not do anything wrong and therefore
should not have been required to attend retraining, the Commission
finds that no evidence has been presented which shows that the training
was ordered because of his race, national origin, sex, religion, color
(Black), age (43), or in reprisal for prior protected EEO activity.1
Accordingly, the Commission finds that Complainant has failed to provide
any evidence which shows that the Agency’s articulated reasons were
pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
___6/17/11_______________
Date
1 We note that Title VII does not protect against unfair or unwise
business decisions--only against decisions motivated by unlawful
discriminatory animus.
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0120093285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093285