Robert R. Sutton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120060932 (E.E.O.C. May. 8, 2007)

0120060932

05-08-2007

Robert R. Sutton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert R. Sutton,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200609321

Agency Nos. 4H-370-0185-03, 4H-370-0122-04

Hearing No. 250-2005-00133X

DECISION

Complainant filed an appeal from an agency's final action dated October

6, 2005, finding no discrimination with regard to his complaints.

The record indicates that complainant, a SSPC Technician, PS-6, at the

agency's Cleveland post office, Tennessee, alleged discrimination based

on disability (depression) and in reprisal for prior EEO activity when

on April 16, 2003, he was informed that his position was to be abolished

effective April 25, 2003, after being downgraded and reposted under

a different description, causing him to become an unassigned regular

employee on April 26, 2003.2

The record indicates that at the conclusion of the investigation,

complainant requested a hearing before an EEOC Administrative Judge (AJ).

The AJ, after a hearing, issued a decision finding no discrimination,

which was implemented by the agency in its final action.

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).

In this case, the AJ determined that, assuming arguendo that complainant

had established a prima facie case of discrimination, the agency

articulated legitimate, nondiscriminatory reasons for the alleged action.

The AJ noted that in 1997, complainant was diagnosed with Major Depression

Disorder, and his doctor recommended that he be assigned to work in

a quiet setting without significant interaction with a supervisor or

other personnel. Accordingly, complainant was then placed in a position

at the Cleveland annex, where he had only one supervisor and very little

contact with other personnel.

After six months being assigned to the annex, complainant bid and was

awarded a SSPC Technician position at PS Level 6. This position allowed

complainant to work in an environment without significant interaction

with supervision. His job was to service the stamp vending machines at

both postal and non-postal locations. He also serviced soft drink vending

machines at postal facilities and helped in maintenance and with duties

of the clerks particularly in the box section and with express mail.

Complainant continued to work successfully in this position until it

was abolished on April 26, 2003, as alleged.

The AJ stated that in November 2001, the agency conducted a Function 4

Review at the Cleveland Post Office. When evaluating the work performed

in complainant's position, the review team referred to Handbook PO 102

to calculate the hours that were appropriate for the work. After the

evaluation, the review team recommended that the Recreation Fund support,

i.e., for which complainant was responsible, be contracted out and

that those duties be dropped from the funding for the job. In 2003,

the Manager of the Cleveland Annex recommended to the Postmaster

that the vending machines cited in the Function 4 Review be removed

from non-postal locations. He recommended that the revenue from those

machines be re-captured through the use of Stamp Consignment Agreements.

The vending machines were removed from those locations at which the stores

had signed Stamp Consignment Agreements. This reduced complainant's

authorized maintenance and travel time even more, and on April 16, 2003,

the agency notified complainant that his position was being abolished.3

He was advised that he could bid on other jobs or become an unassigned

regular employee.

The agency stated that complainant's position was eliminated because

there was not enough work for a full-time employee in the job.

After contracting out the stamp sales, the agency still had two vending

machines on postal property that required maintenance on a part-time

basis. The agency created a PS Level 5 Mail Processing Clerk position

that contained as a part of its description the remaining SSPC duties.

The vacancy for this position was announced on April 28, 2003, two days

after the SSPC Technician position was formally abolished. Complainant

bid on the new Mail Processing Clerk position and was awarded the position

on May 8, 2003. On May 23, 2003, the agency announced a vacancy for

a Senior Mail Processor, PS Level 6 position. Complainant bid on this

position on May 29, 2003, and he was awarded the job.

Based on the foregoing, the AJ, assuming arguendo that complainant had

established a prima facie case of discrimination, found that the agency's

decision to abolish complainant's position was based on an analysis of

the jobs at Cleveland. The agency was losing time and money leaving

complainant in his job. By restructuring the position at Cleveland,

the agency was able to save time and money and place complainant in

a full-time job. Nothing in the agency's actions indicated that any

discriminatory animus was a factor in the decision to abolish the job.

In fact, complainant was able to bid the restructured position after his

position was eliminated. Management explained that the restructured

job would have continued to allow complainant to service the stamp

machines at least two hours per day, thus providing him time away from

his supervision and his coworkers.

The AJ determined that the sum of the evidence credibly established that

complainant was not performing a full-time SSPC Technician position at

the time the agency decided to abolish his job, and there was no evidence

to show that the decision to remove the stamp machines was based on any

discriminatory animus. Therefore, the AJ found, and we agree, that the

agency has articulated legitimate, nondiscriminatory reasons to abolish

complainant's job. The AJ also found that complainant failed to show

by a preponderance of the evidence that the agency's proffered reasons

were pretextual.

The AJ, finding that complainant was a qualified individual with a

disability, also determined that the agency had been accommodating

complainant's disability since 1997, by assigning him to work in a

quieter setting without significant interaction with supervisors or

other personnel. After the Function 4 Review, the agency restructured the

job which included the duties which complainant had in his old position.

Complainant then bid and was awarded a position (Mail Processing Clerk)

which accommodated his disability. However, the AJ found that, in a

move that "defie[d] explanation," complainant subsequently bid a job

which placed him in the situation that he had been avoiding, that

of working with significant interaction with supervisors and other

personnel. The AJ determined that complainant made a choice to reject

an accommodation and place himself in the new job. The AJ noted that

the agency was not responsible for complainant's choice. Therefore,

the AJ concluded that the agency did not fail to provide complainant

with a reasonable accommodation for this claimed disability. The agency

did not force complainant to accept a job that may have violated his

medical restrictions.

The AJ's decision finding no discrimination is supported by substantial

evidence. The issue in this complaint concerns the actions on April 26,

2003, by the agency. Complainant failed to show those actions were

discriminatorily motivated and failed to show he was not reasonably

accommodated as a result of those actions. We do not address whether

complainant is a qualified individual with a disability.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, the agency's final action 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 8, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 An EEOC Administrative Judge indicates in his decision, footnote 1, that

although complainant raised a total of seven claims in the complaints,

prior to the hearing, he withdrew all claims except the claim set forth

herein. Complainant does not contest this. The record indicates that

the agency investigated all of the seven claims.

3 The AJ noted that complainant's position was not the only one abolished

in Cleveland as a result of the Function 4 Review.

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0120060932

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036