0120065093
08-08-2008
Ronald M. Dudley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald M. Dudley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200650931
Hearing No. 380-2006-00084X
Agency Nos. 1E-982-0007-05; 1E-982-0002-05
DECISION
On September 7, 2006, complainant filed an appeal from the agency's July
28, 2006, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant worked as a Parcel Post
Distributor (Machine) at the agency's Seattle Bulk Mail Center
facility in Federal Way, Washington. Effective October 9, 1999,
complainant was employed in a Rehabilitation Job Offer (RJO1) due to
his medical restrictions.2 Complainant's position was divided between
"115 Operations" which included working on the loose mail belt operation
and Business Mail Entry Unit. The RJO1 was determined to be suitable
by Office of Workers' Compensation Program (OWCP). On December 7, 2004,
the agency offered a Rehabilitation Job Offer (RJO2) to complainant where
in his duties were changed to "sorting loose straps" and "monitoring
primarily Loops 1 and 2 and recording various types of mail that are
'riding the Loops.'"3 Complainant neither accepted nor rejected the
offer. On February 5, 2005, the Manager, Distribution Operations,
notified complainant that the RJO2 was forward to the OWCP for a
suitability determination and unless complainant signed the job offer,
he would remain "off the clock" until he either accepted the RJO2 or
OWCP issued a suitability determination. The record additionally shows
that from October 1, 2004 to the date of the hearing, complainant was
bypassed for overtime opportunities.
On June 14, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African-American), color
(brown), and disability (neck and shoulder) when:
1. from February 6, 2005 to May 28, 2005, he was not permitted to work,
because a suitability determination was pending with the Office of
Worker's Compensation Program; and
2. from October 1, 2004 through the present, he was bypassed for overtime
opportunities.
At the conclusion of the investigation, complainant was provided 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.
The AJ held a hearing on June 15, 2006 and issued a decision on July 12,
2006. The AJ found that complainant established a prima facie case of
race and color discrimination. However, the AJ found that complainant
failed to establish a prima facie case of disability discrimination
since he failed to show that he was substantially limited in a major
life activity. The AJ noted that complainant appeared to argue that
with regard to claim (1), the agency failed to provide him with an
accommodation when it did not allow for him to remain in the position he
occupied at the time the RJO2 was offered to him. The AJ concluded that
the agency provided him the accommodation. With regard to complainant's
disparate treatment claim, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ concluded
that complainant failed to show that the agency's reasons were a pretext
for discrimination.
Regarding claim (2), the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for not providing him overtime. The AJ found
that complainant failed to present any evidence to show that the agency
was motivated by discriminatory animus. The AJ found that complainant
failed to establish by the preponderance of the evidence that he was
discriminated against as he alleged. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Assuming arguendo that complainant established a prima facie case of
race, color, and disability discrimination, with regard to complainant's
disparate treatment claim, in claim (1), we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.4
Specifically, the Manager of Distribution Operations (M1) asserted that
complainant was offered RJO2. because his assignment primarily involving
manually processing loose letters was no longer needed. M1 testified that
in or about August 2004, the agency eliminated the need for employees
to manually process loose letters. Instead, any loose letters would be
sent to a local processing and distribution center to be automatically
processed. Consequently, the agency no longer had any need to manually
sort or prepare loose mail. When complainant failed to either accept or
to deny the RJO2, M1 stated that complainant was offered to be compensated
for a reasonable amount of time for his union functions and any higher
level details for which he would be scheduled, but that the agency
would not compensate him when he was not actually working. M1 also
offered complainant similar work on a short-term basis that would have
ended when the OWCP made a suitability decision. However, complainant
declined that offer as well. M1 determined that complainant effectively
declined the RJO2 and because he did not want to perform of the duties
contained in RJO2, M1 determined that he would be placed "off the clock"
because he was no longer performing any work related duties.
Because we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions, complainant must prove by a preponderance of the
evidence that the agency was instead motivated by discriminatory animus.
Complainant has failed to proffer any evidence to support his contentions
that the agency was motivated by race or disability based animus.
Rather, the record reveals that the agency sought to keep complainant
employed after his primary duties were abolished. Further, complainant
offered insufficient reasons as to why he neither accepted nor declined
the position. Complainant failed to prove by a preponderance of the
evidence that the agency discriminated against him on the bases of his
race, color or disability as alleged.5 Accordingly, the AJ's finding of
no discrimination as to claim (1) is supported by substantial evidence
in the record.
Similarly, with regard to claim (2), assuming arguendo that complainant
established a prima facie case of race, color, and disability
discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant to perform
overtime duties. Specifically, the Supervisor of Distribution Operations
(S1), testified that he was in charge of the overtime schedule.
S1 stated that he passed over complainant for overtime opportunities
since either complainant was not trained for the positions available or
the requirements for the position were outside of complainant's medical
restrictions. Further, S1 stated that he was restricted by the bid
structure such that although complainant identified a position for which
he was trained and qualified to perform and which occasionally required a
substitute, S1 could not automatically assign complainant to the position
as an overtime assignment. S1 was required to first fill the vacancy
with employees whose bid positions, "bid relief" employees, included
that position and who would not be provided overtime, but regular pay.
Complainant was a "pool relief" employee who would have been selected
for overtime for the position had all the employees in the "bid relief"
position been unavailable. However, S1 testified that there were four
"bid relief" employees who had priority over complainant.
Because we found that the agency articulated legitimate, nondiscriminatory
reasons, complainant now bears the burden of proving that the agency's
proffered reasons were a pretext for discrimination. We find that
complainant failed to proffer any evidence to show that the agency's
reasons were a pretext for discrimination. Accordingly, we find that
the AJ's finding that complainant was not discriminated against as he
alleged with regard to claim (2) is supported by substantial evidence
in the record.
Based on a thorough review of the record and the contentions on appeal,
we find that the AJ's finding of no discrimination is supported by
substantial evidence in the record. Accordingly, we affirm the agency's
final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__08-08-2008_
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Complainant's limitations included: intermittent lifting up to 40
pounds; partial pushing/pulling; no keying; and occasionally "throwing"
mail.
3 The agency identified complainant's limitations as: lifting up to
40 pounds; pushing/pulling-intermittently; working 8 hours per day;
no reaching above the shoulder; and no keying.
4 For analytical purposes only, we assumed that complainant was an
individual with a disability as alleged.
5 It is unclear from the record whether complainant alleged that the
agency failed to provide him with an accommodation. However, the
Commission determines that the AJ's finding that complainant failed
to establish that the agency did not provide him with a reasonable
accommodation is supported by substantial evidence in the record.
M1 testified that he offered RJO2 to complainant because his primary
duties were abolished. We find that complainant failed to present any
evidence to show that he was not provided with a reasonable accommodation.
Further, we note that while under the Rehabilitation Act, protected
individuals are entitled to reasonable accommodation, but they are not
necessarily entitled to their accommodation of choice. See Castaneda
v. United States Postal Service, EEOC Appeal No. 01931005 (February
17, 1994).
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0120065093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065093