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

Equal Employment Opportunity Commission

Jun 6, 2013

0120113517 (E.E.O.C. Jun. 6, 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
(Southeast Area),
Agency.

Appeal No. 0120113517

Hearing No. 410-2010-00411X

Agency No. 1H-301-0009-10

DECISION

On July 8, 2011, Complainant filed an appeal from the Agency’s June 3, 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 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 relief Custodian at
the Agency’s Processing & Distribution Center and surrounding facilities in Atlanta, Georgia.1

In 2009, Complainant was sent to the Northside Carrier Annex where he worked with a female
custodian (CW1) whose bid position was at the annex. By all accounts, Complainant worked
independently - with little supervision - took initiative, and performed his duties well. In
contrast, CW1 required a lot of supervision and did not always complete tasks for which she
was responsible. CW1 also used a cane to get around although she was not restricted from
performing the full complement of her custodial duties. Complainant and CW1 did not get
along particularly well with each other.

1 By relief, we mean that he would be sent to different facilities to perform work as needed,
rather than always remaining assigned to the same facility.
0120113517

2
In March 2009, the Manager of the annex met with Complainant and CW1 and asked them
how they wanted to divide up the work. Both custodians took responsibility for their sex
appropriate bathrooms, and Complainant basically requested a majority of outside duties while
CW1 agreed to a majority of inside duties. By October 2009, Complainant became
disgruntled, believing he was required to perform more arduous duties than CW1 was required
to perform, and he filed an EEO complaint alleging sex discrimination. The complaint was
amended to include additional issues and the basis of reprisal.

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. Prior to the hearing,
Complainant withdrew all but the above referenced claim. The AJ held a hearing on March
18, 2011, and issued a decision on March 25, 2011.

In his decision, the AJ found sufficient evidence to support a prima facie case of sex
discrimination. However, he further found that the Agency articulated legitimate, non-
discriminatory reasons for the assignment of duties, namely that Complainant chose the duties
that he wanted to perform. In reaching this conclusion, the AJ credited testimony from the
manager and CW1. The AJ thus concluded that the duties Complainant performed were the
ones he requested to perform and were not intentionally assigned to him because of his gender.
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, but Complainant did not submit any supporting statement.

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 record, we discern no basis to disturb the AJ’s decision. His conclusion,
that management did not assign more arduous duties to Complainant because of his gender, is
supported by substantial evidence in the record. While we can surmise from the hearing
0120113517

3
transcript that, for various reasons, custodians assigned to work with CW1 typically assumed
responsibility for duties she was either not agile enough or willing to perform, there is no
evidence that management required other custodians to do so, much less based upon their sex.
For these reasons, we AFFIRM the Agency’s final order.

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
0120113517

4
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

June 6, 2013
Date