Adam Jackson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 22, 2007
0120061851 (E.E.O.C. May. 22, 2007)

0120061851

05-22-2007

Adam Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Adam Jackson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200618511

Hearing No. 130-2005-00200X

Agency No. 4H-350-0016-05

DECISION

On January 23, 2006, complainant filed an appeal from the agency's

December 21, 2005 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. For the following reasons, the Commission AFFIRMS the

agency's final order.

At the time of events giving rise to this complaint, complainant worked

as a Mail Processing Clerk at the agency facility in Dothan, Alabama.

Complainant's primary task was as a machine operator, who worked on

Sundays, with the least seniority at the facility. Complainant's position

was abolished and he was made an unassigned regular employee with his

days off changed from Tuesday and Wednesday to Sunday and Wednesday,

and his reporting time on Monday was changed from 1 a.m. to midnight.

Complainant stated as a result of the change in his work schedule, he lost

Sunday premium pay and nighttime differential pay. Complainant claimed

that he could have performed secondary tasks on Sundays, which would have

allowed him to keep his position and the same off days. The Postmaster

stated that he decided to eliminate the machine operator position on

Sunday in the best interests of the agency. The Postmaster stated that

99% of the work on the machines operated by complainant was performed

on days other than Sunday.

Complainant filed an EEO complaint on January 12, 2005, claiming that he

was discriminated against on the basis of race (African-American) when

on September 23, 2004, his position was abolished. At the conclusion of

the investigation, complainant was provided with a copy of the report

of investigation and notice of his right to request a hearing before an

EEOC Administrative Judge (AJ). Complainant timely requested a hearing

and the AJ held a hearing on November 29, 2005, and issued a decision

on December 15, 2005. The AJ found that complainant established a prima

facie case of race discrimination. The AJ observed that other employees,

not of complainant's race, who were in the same job position were allowed

to retain their positions. The AJ found that the agency articulated

legitimate, nondiscriminatory reasons for eliminating complainant's

position. The AJ noted that the agency stated that it had little need

for the machines operated by complainant to be in operation on Sundays.

According to the agency, elimination of complainant's position served its

needs as 99% of the work performed on machines operated by complainant

was performed Monday through Saturday. Further, the agency stated that

complainant was the most junior machine clerk with Sunday workdays.

The AJ found that complainant failed to produce sufficient evidence to

establish that the reasons articulated by the agency for eliminating his

position were pretext to mask discrimination. The agency subsequently

issued a final order implementing the AJ's finding that complainant

failed to prove that he was subjected to discrimination as alleged.

On appeal, complainant contends that the agency should have allowed him to

work second or third tasks on Sundays as others were permitted, instead

of abolishing his position. Complainant notes that the machines have

been used on Sundays on three occasions since his job was abolished.

Complainant further notes that the Postmaster testified that he did

not recall any significant increase in operational productivity after

complainant's job was abolished.

In response, the agency asserts that the elimination of complainant's

position was done to serve its needs. The agency notes that 99% of the

work done on the machine operated by complainant was performed during

the week. The agency states that complainant was the most junior clerk

who worked on Sundays.

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, � VI.B. (November 9, 1999).

Upon review of the record, the Commission finds that the AJ's decision

finding no race discrimination is supported by substantial evidence.

The Commission agrees with the AJ's finding that the agency set

forth legitimate, nondiscriminatory reasons for its abolishment of

complainant's position. The Commission agrees with the AJ's finding that

complainant failed to establish by a preponderance of the evidence that

the abolishment of his position was due to discriminatory motivation.

The agency's decision finding no discrimination is AFFIRMED.

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

May 22, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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2

01200618

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120061851