Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120114223 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120114223

Hearing No. 470-2010-00066X

Agency No. 1C-401-0032-09

DECISION

On September 12, 2011, Complainant filed an appeal from the Agency’s August 31, 2011 final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Support Clerk at the Agency’s Processing & Distribution Center in Louisville, Kentucky. The
Maintenance Support Clerks perform a support function for the electronic technicians,
mechanics and custodians. Complainant's job duties include data entry at a desk, writing work
orders, filing paperwork, issuing keys, answering the phone, and occasionally retrieving parts
from the parts room for repair of mail processing equipment. He also pulls orders, produces
reports, tracks data, and stocks parts. The job is 80%-90% sedentary, and the other 10%
consists of going to the parts room and issuing parts, going to the custodial cage and issuing
custodial supplies, and issuing keys.

On July 30, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability when:

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1. he was denied reasonable accommodation from on or about April 13, 2009, to the
present.
2. on or about October 17, 2009, the Agency denied him the opportunity to serve on
the Housekeeping Inspection Committee.

Complainant also alleges that he was retaliated against for his prior protected EEO activity
when:

1. on various dates between April 6, 2009 and May 16, 2009, Complainant was
subjected to threatening, bullying and harassing acts, and management failed to
protect him from this behavior;
2. in or about April 2009, the Agency moved Complainant to a different work area
and did not give him a reason for the move;
3. from on or about April 13, 2009 to the present, the Agency denied Complainant
reasonable accommodation for his disability; and
4. on or about August 10, 2009, management accessed Complainant's mailbox and
disposed of his mail.

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). Complainant timely requested a hearing, and the AJ held a hearing
on September 28, 2010, and issued a decision on July 7, 2011.

In her decision, the AJ found Complainant not to be a credible witness. With regard to the
reasonable accommodation claim, Complainant sought to be assigned to the parts room to
minimize walking. The AJ noted that Complainant went out for a walk every day during his
lunch break; could not recall whether his doctor said walking was good for his knees or not;
wanted to serve on the Housekeeping Inspection Committee despite the fact that it required
extensive walking; and failed to submit any medical documentation supporting an impairment.
The AJ found that the real reason Complainant wanted to work in the parts room was to be
away from his supervisor with whom he did not get along. The AJ concluded that there was
no basis to find the Agency liable for not providing the requested accommodation. Similarly,
with regard to the Housekeeping Inspection Committee, the AJ having herself found
Complainant not believable, credited his Manager’s testimony that Complainant was not a good
candidate to serve on the committee because he sometimes misrepresents what others say. The
AJ found that this was the real reason he was not selected to serve and not because of disability
based animus.

With regard to Complainant’s claims of reprisal, the AJ found that Complainant was not
subjected to threatening, bullying and harassing acts. Rather, she found that Complainant’s
often “borderline insubordinate” conduct contributed to the poor relationship he had with his
supervisor (who was known to be a “hot head”) and that when management intervened to
separate the two, the problems resolved. With regard to being moved without a reason, the AJ
again found this to not be credible, given Complainant’s own inconsistent testimony and the
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supervisor’s credible testimony as to why he needed Complainant to move. Concerning the
mailbox, the AJ found that what Complainant referred to as a mailbox was really “an open-
slotted, common area used to distribute information to employees, to disseminate printed
memos, notes, reports and such, and was under the care and management of postal
supervision.” The AJ concluded that management was keeping the common area clean by
throwing old papers away, not retaliating against Complainant. Finally, consistent with her
conclusion that Complainant’s request for reasonable accommodation was not genuine, she
found no evidence that the Agency’s denial was in retaliation for his prior protected activity.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged. This appeal followed,
with no brief or supporting statement from Complainant.

STANDARD OF REVIEW

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).

ANALYSIS AND FINDINGS

Upon review of the AJ’s decision and the complete record, we find no basis to reject the AJ’s
credibility determinations. Moreover, her factual findings are supported by substantial
evidence, and her well-reasoned conclusions of law are consistent with Commission policy and
precedent. Even assuming that Complainant is a qualified individual with a disability within
the meaning of the Rehabilitation Act, there is no basis for imputing liability to the Agency for
a violation thereof. The Agency’s final order 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:
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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
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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

March 7, 2013
Date