0120113157
10-25-2012
James D. Booker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
James D. Booker,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113157
Hearing No. 451-2010-00241X
Agency No. 1G-784-0009-08
DECISION
On May 24, 2011, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's April 28, 2011, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Mail Handler at the Agency's Corpus Christi Processing & Distribution Center in Texas.1
On November 13, 2008, he filed an EEO complaint, into which a subsequent complaint was consolidated, alleging that he was discriminated based on:
1. His national origin (Non-Hispanic (Anglo)) when beginning on or about July 9, 2008, and continuing thereafter, he was prohibited from using a stool while performing his duties; and
2. Reprisal for protected activity under Title VII (filing the instant EEO complaint) when on or about December 1, 2008, management removed approximately 80% of his hand-stamped mail and assigned it to a clerk.
At the conclusion of the investigation the Agency provided Complainant with a copy of the report of investigation. He requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing the AJ made a decision finding no discrimination, which the Agency fully implemented.
The AJ found the following: Complainant's supervisor (S1) removed the stools from Complainant's operation on July 9, 2008. Within [days] Complainant and Co-worker 1 (national origin Puerto Rico) submitted medical documentation that they needed stools. Co-worker 1's medical documentation indicated he needed the stool intermittently and Complainant's indicated he needed it full-time while performing hand-stamp mail duties. He did them about two hours daily. While Co-worker 1 was then permitted to use a stool Complainant was told by management to request light duty to have one, something he refused to do. When Co-worker 1's use of the stool became more than intermittent management denied him use of the stool on or about January 27, 2009.2
The AJ found that S1 put the no stool policy in place but some employees did not know about it or ignored it. The AJ found that S1 was aware that sometimes stools were still being used because he removed them, and that he spent very little time in Complainant's operation and may have overlooked the stools, or the policy was inconsistently enforced. The AJ found that on other occasions when S1 saw stools being used they were removed, and there was insufficient evidence to prove the rule was enforced based on national origin. The AJ noted that Complainant decided not to break the rule.
The AJ found that S1 articulated a legitimate, nondiscriminatory reason for the removal of the stools, i.e., the stools slowed employees down and reduced productivity and efficiency,3 and Complainant did not prove this reason was pretext to mask discrimination.
The AJ found that S1 articulated a legitimate, non-discriminatory reason for reassigning a large amount of the hand-stamp mail duty to a clerk, i.e., Complainant was not sufficiently productive on this task, so he gave a portion of it to a clerk on limited duty. The AJ found that Complainant did not prove pretext, but instead corroborated S1's account by stating the reassignment of the hand-stamped mail occurred in December when the mail "got heavy" and S1 did not want him to be the only person doing this task because otherwise the mail would be late for dispatch, and by taking the mail, he could get his mail out. Hearing Transcript, 21-22.
On appeal Complainant argues that the AJ mischaracterized the record and did not properly weigh the evidence.
In opposition to the appeal the Agency argues that the AJ's decision should be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
We find that there is substantial evidence to support the AJ's finding of no discrimination. The Agency's final action fully implementing the AJ's decision finding no discrimination is AFFIRMED.
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
October 25, 2012
__________________
Date
1 Complainant retired effective May 1, 2009.
2 S1 testified that initially Co-worker 1 used the stool on a very limited basis, but as time went by his quarter use went to 50% and then 75% use, and he then took the stool from Co-worker 1 in January 2009. Co-worker 1 filed an EEO complaint alleging, in relevant part, that he was discriminated against based on his national origin (Puerto Rico) when he was denied use of a chair. An EEOC AJ found no discrimination, reasoning in relevant part that Co-worker 1 did not prove disparate treatment. On appeal, the Commission affirmed. Gonzalez-Brunet v. United States Postal Service (Southwest Area), EEOC Appeal No. 0120103081 (June 1, 2012).
3 When Complainant's second line supervisor was asked for an occasion when he saw Complainant's use of the stool causing productivity problems, he testified that on occasion they saw Complainant falling asleep or nodding off at his desk.
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0120113157
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113157