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

Equal Employment Opportunity Commission

Jun 14, 2013

0120113347 (E.E.O.C. Jun. 14, 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
(Southwest Area),
Agency.

Appeal No. 0120113347

Hearing No. 451-2010-00233X

Agency No. 1G-784-0007-09

DECISION

On June 30, 2011, Complainant filed an appeal from the Agency’s June 2, 2011 final order
concerning her 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 on Tour 3 in a
modified position as a Mail Processing Clerk at the Agency’s Hector P. Garcia General Mail
Facility in Corpus Christie, Texas. For at least ten years, Complainant had started her shift at
3:30 p.m. and would for two hours perform “set-up” work on the mail processing machines.
However, in February 2009, Complainant’s starting time was shifted to 5:30 p.m., and she
was no longer assigned “set-up” duties.

On June 19, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability when her schedule and duties were changed. The Agency
initially dismissed the complaint, but the Commission reversed the dismissal on appeal and
remanded the complaint for investigation. v. United States Postal Serv., EEOC
Appeal No. 0120093186 (Jan. 26, 2010). At the conclusion of the investigation, the Agency
provided Complainant with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a
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hearing, and the AJ held a hearing on December 15, 2010, and issued a decision on April 29,
2011.

In her decision, the AJ found that the Agency articulated legitimate, non-discriminatory
reasons for changing Complainant’s starting time. Specifically, due to the drastic decrease in
mail volume and the dire financial crisis facing the Agency, managers were tasked with
improving operational efficiency and reducing costs, including overtime. Consequently at this
facility, Tour 2 was eliminated entirely and it was determined that having employees on Tour 3
do their own “set-up,” rather than assigning that task to limited duty employees like
Complainant, was more efficient. Thus, the work Complainant had been performing from
3:30 pm – 5:30 pm was no longer operationally necessary. The AJ found the record replete
with evidence that the kinds of changes management implemented affected all employees and
reduced overtime costs.

Further, the AJ concluded that Complainant was not denied reasonable accommodation. The
AJ found no evidence that Complainant’s disability required a 3:30 p.m. start time as an
accommodation and there was no evidence that the work Complainant performed after her
starting time changed violated her medical restrictions. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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. The AJ credited
management’s testimony as to what assignments were operationally efficient and how the
changes made affected many employees. There is no objective evidence that contradicts this
testimony, and Complainant’s belief that she was entitled to keep doing what she had always
done is not evidence. It is simply her belief. Further, substantial evidence in the record
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supports the AJ’s findings of fact concerning why the changes in scheduling and work
assignments were made, and there is no evidence of intentional disability based discrimination.

On appeal, Complainant argues, among other things, that she lost her modified position. This
argument is without merit. Complainant remained working in her modified position, albeit
with a different starting time and slightly different duties, neither of which, as noted above,
violated her medical restrictions. Assuming arguendo that Complainant’s modified position is
a form of reasonable accommodation, the Rehabilitation Act does not prohibit an Agency from
making changes to it, as long as the accommodation remains effective – as it did for
Complainant.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, 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).
0120113347

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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

June 14, 2013
Date