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