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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01200618
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120061851