0120111330
05-24-2013
Ralph Jangula, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Ralph Jangula,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120111330
Hearing No. 443-2010-00031X
Agency No. 4E-570-0011-09
DECISION
On December 23, 2010, Complainant filed an appeal from the Agency's November 29, 2010, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal, according to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
1. Whether there is substantial evidence in the record to support the EEOC Administrative Judge's (AJ) finding that the Agency did not discriminate against Complainant on the bases of sex and age when the manager of training for the Dakotas District Office decided to abolish Complainant's position of Training Technician.
2. Whether there is substantial evidence in the record to support the EEOC AJ's finding that the Agency did not discriminate against Complainant on the bases of sex, age, or reprisal for prior EEO activity when management involuntarily reassigned Complainant to the modified position of Mail Processing Clerk during the evening shift.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a training technician at the Postal Employee Development Center (PEDC) in Bismarck, North Dakota. The Dakotas District had four training technicians, with each technician posted at one of four Postal Employee Development Centers:
* Bismarck, ND
* Fargo, ND
* Rapid City, SD
* Sioux Falls, SD
Of the four training technicians in the Dakotas District, Complainant was the oldest and the only male.
In February 2009, headquarters mandated that the Dakotas District eliminate one of the four training technician positions. The Manager of Training for the Dakotas District (training manager) decided to eliminate Complainant's position and informed him on April 17, 2009.
On April 25, 2009, a new plant manager began working at the Bismarck Processing and Distribution Center. He was responsible for finding Complainant an alternative assignment that could be performed within his medical restrictions, which included standing for no more than 10 minutes per hour.
On May 12, 2009, Complainant initiated contact with an EEO counselor regarding the abolishment of his position.
On June 17, 2009, the plant manager issued a formal letter, officially notifying Complainant about the abolishment of his position. In explaining the decision, the plant manager wrote:
This decision was made in response to the implementation of the Learning Management System (LMS). The Learning Management System (LMS) IT Application will handle business processes related to training course management, scheduling, tracking and reporting. Due to this technology, many of the job duties of the PEDC technician job have been reduced or eliminated altogether. After a review of the remaining work, it was determined that these job duties would only support three PEDC Technicians and the work would need to be consolidated into three locations.
Currently, the Dakotas District has [four] PEDC locations located in Sioux Falls, Fargo, Rapid City, and Bismarck. The decision to close the Bismarck PEDC was made after an operational review by the [training manager] . . . . [The training manager] informed me that Sioux Falls and Fargo are the busiest PEDC locations, as both serve the Dakotas District's two largest plans. The decision to close Bismarck rather than Rapid City was made primarily for two reasons. First, is the simple fact of geography. The distance between Rapid City and Sioux Falls is 343 miles, whereas Fargo and Bismarck are only 195 miles apart from one another. (Rapid City is also some 350 miles from Bismarck.) There are also several secondary sites between Fargo and Bismarck that can be used for any necessary on-site training such as Jamestown and Valley City. A second important consideration was the fact that the Bismarck facility does not have specialized operations networking integrated keyboard (SONIKS) scheme, which is an additional workload for the PEDCs. Rapid City and Sioux Falls both have SONIKS scheme.
Report of Investigation (ROI), Affidavit (Aff.) D, at 10.
Complainant's last official day as a training technician was July 3, 2009. On July 15, 2009, the plant manager assigned Complainant to be a Mail Processing Clerk in Manual Letters. The work hours were from 8:30 pm to 5:00 am, an undesirable work shift that no one else had bid on. Complainant did not accept this position and eventually submitted medical documentation from his doctor, indicating that he could not work nights. He took leave and then retired.
EEO Complaint
On July 28, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of his sex (male) and age (62) when the Agency abolished his position of Training Technician at the Postal Employee Development Center in Bismarck, North Dakota.
Complainant also alleged that the Agency discriminated against him on the bases of sex (male), age (62), and reprisal for prior EEO activity when the Agency involuntarily assigned him to the undesirable position of Mail Processing Clerk with work hours from 8:30 pm to 5:00 am.
EEOC AJ's Decision
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 October 5, 2010, and issued a decision on November 15, 2010.
For the abolishment of Complainant's position, the AJ determined that Complainant established a prima facie case of sex and age discrimination. The AJ then found that the training manager articulated legitimate, nondiscriminatory reasons for eliminating Complainant's position, rather than the other three training technicians in the district. According to the training manager, she did not consider abolishing the Fargo and Sioux Falls positions because the number of onsite employees at those two facilities greatly exceeded those in Rapid City and Bismarck.
The training manager then mainly considered how to best minimize the travel distances for the training technicians. According to the training manager, the Bismarck facility was closer in proximity to the Fargo, ND Postal Employee Development Center (195 miles), compared to the distance between Rapid City, SD and the Sioux Falls, SD Postal Employee Development Center (343 miles). The training manager reasoned that travel distances for training would be less in North Dakota, which is a smaller state, than in South Dakota. Also, the location of other large postal facilities in North Dakota would enable the Agency to locate temporary training sites where postmasters or EAS employees could conduct training.
Complainant argued that the training manager's explanation was not credible and unworthy of belief. Using the number of employees physically located at a particular facility was not a valid way to measure the workload of a training technician, for technicians served a number of offices spread across a designated geographic area.
According to Complainant, more useful work metrics would show that he served the largest number of Postal offices in the district (299 compared to 203 for Fargo, 178 for Sioux Falls, and 89 for Rapid City), conducted the largest number of new employee sessions, served over twice as many employees as the Rapid City technician (1367 employees for Bismarck versus 496 for Rapid City), and was the only training technician in the district who participated in the driver training program. As such, Complainant's actual workload, he maintained, was significantly greater than the other training technicians. Moreover, the training manager admitted that she had no personal knowledge about Complainant's workload when she made her decision because she was not his onsite supervisor.
Complainant testified that the plant manager's second stated factor for abolishing his position, the lack of a SONIKS scheme, was also not credible. SONIKS training was essentially self-taught and composed a miniscule amount of a training technician's workload. Therefore, he asserts that the existence or lack of SONIKS training was not a credible factor in comparing the workloads of the training technicians.
Complainant also called into question the credibility of the Agency's explanation because management officials either shifted explanations or gave inconsistent reasons. For example, in his affidavit, the plant manager averred that the main factor in deciding to abolish Complainant's position was because "the distance between Bismarck and Fargo was greater than the distance between Rapid City and Sioux Falls." ROI, Aff. D, at 217. But this contradicted his June 17, 2009 letter, in which he wrote that the "distance between Rapid City and Sioux Falls is 343 miles, whereas Fargo and Bismarck are only 195 miles apart from one another." At the hearing, the plant manager admitted that his affidavit testimony had been incorrect. Hearing Tr., at 16, 77.
In addition, Complainant argued that the training manager had taken his age into account by noting in their April 17, 2009 meeting that he was eligible for retirement.
The AJ determined that Complainant did not sufficiently demonstrate that the Agency's explanations were pretextual or unworthy of belief. The AJ found that the training manager credibly testified that she discounted the number of offices served because the implementation of the Learning Management System eliminated data entry work for these offices. Data entry work could be easily reallocated to other facilities.
And although the training manager admitted that she had asked Complainant if he was retirement eligible, the AJ found the training manager credible in testifying that she had made the decision to abolish Complainant's position before she knew that Complainant was retirement eligible. She credibly testified that the main reason she had abolished Complainant's position was due to the geographic proximity of Bismarck as opposed to Rapid City.
Regarding Complainant's involuntary reassignment, the AJ assumed without deciding that Complainant established a prima facie case of retaliation. The AJ found that the plant manager articulated a legitimate, non-retaliatory reason for assigning Complainant to the position of Mail Processing Clerk during the evening shift. The plant manager testified that he searched for available positions within Complainant's medical restrictions. He surveyed supervisors for positions, and that the only available position that he could find that allowed Complainant to stand for at most 10 minutes per hour was the Mail Processing Clerk position.
Complainant argued that the plant manager should have offered him a training position and pointed out that training still continued in Bismarck after his position had been abolished. The AJ found the plant manager to be credible in testifying that there were no funded positions available for the type of training duties that Complainant desired and that were within his medical restrictions. Complainant never bid on any available assignments. The AJ found that Complainant failed to offer any evidence that the plant manager's explanation for offering the Mail Processing Clerk position was pretextual.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ failed to properly weigh the evidence in finding no discrimination. For example,
* The AJ did not properly consider the training manager's admission that she had talked about Complainant's retirement eligibility at the time his position was abolished.
* The AJ did not properly consider the fact that the Agency used widely shifting and implausible reasons for abolishing his position.
Complainant also noted the AJ's failure to address evidence of management's resistance to approving Complainant's requests for leave after he engaged in protected EEO activity.
ANALYSIS AND FINDINGS
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).
Upon review of the record, the Commission finds that there was substantial evidence in the record to support the AJ's findings of no discrimination. There was ample hearing testimony from management officials that discussed the reasons why they abolished Complainant's position and why they reassigned him to a position that Complainant did not desire.
Although Complainant tried to show that management's decisions were a business error or a misjudgment in that they failed to minimize costs, or take into account actual workloads or duty assignments, or consider the geographical area served, an employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or misjudgment. Employers have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Overall, we determine that there was sufficient documentary and oral testimony from management such that a reasonable mind might accept as adequate to support a conclusion of no discrimination, and Complainant did not present sufficient reasons to justify reweighing the evidence.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, adopting the AJ's decision finding no discrimination on the bases alleged.
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 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
__5/24/13________________
Date
2
0120111330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120111330