0120083507
12-31-2008
William Arnold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
William Arnold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120083507
Hearing No. 320-2005-00256X
Agency Nos. 1E-802-0031-04; IE-802-O019-05
DECISION
On August 14, 2008, complainant filed an appeal from the agency's July
18, 2008 final order concerning his equal employment opportunity (EEO)
complaint claiming unlawful 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).
For the following reasons, the Commission AFFIRMS the agency's final
order.
During the period at issue, complainant worked as a Labor Custodian at the
Bulk Mail Center in Denver, Colorado. Complainant filed EEO complaints,
which were consolidated, alleging that he was discriminated against on
the bases of race and disability1 when:
(1) on October 1, 2003, his request for a transfer to Colorado Springs
was denied.
Complainant further contends he suffered race and disability-based
discrimination and unlawful reprisal [arising under Title VII and the
Rehabilitation Act] when:
(2) in October 2004 his medical information was disclosed to colleagues
and management failed to investigate his complaint of such disclosure;
and,
(3) on March 13, 2005, a supervisor interviewed him as part of an
investigation into charges of harassment brought against complainant by
a female co-worker.
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 and the AJ held a hearing on January 15, 2008 and
issued a decision on February 6, 2008. The AJ found complainant not
credible, citing several specific points of testimony, and concluded by
finding that there was no persuasive evidence of discrimination as to
the challenged actions in this case. 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.
Complainant, through counsel, submitted a brief in support of his appeal,
in which he urges the Commission to reverse the AJ's decision finding
no discrimination. The agency asks the Commission to affirm the final
order.
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).
Disparate Treatment
The allocation of burdens and order of presentation of proof in a Title
VII or Rehabilitation Act case alleging disparate treatment discrimination
is a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, assuming complainant is disabled under the Rehabilitation Act, and
that he can otherwise establish a prima facie case of discrimination
on the alleged bases, the agency has articulated legitimate,
nondiscriminatory reason for its actions. Specifically, complainant had
to wait 18 months before he was eligible for a transfer/reassignment,
pursuant to the Collective Bargaining Agreement. As to issue (2),
the alleged disclosure of complainant's medical information did not
occur. As to the claim that management failed to investigate the
alleged disclosure, the manager of the maintenance operation stated
that he could not recall complainant making such a request, but noted
that he could recall complainant coming to him with concerns about
his coworkers gossiping. The manager testified that in response,
he distributed workroom conduct rules to all his subordinates, and
had his supervisors conduct stand-up talks on the matter. As to issue
(3), all of the various witnesses to the confrontation in question were
interviewed and the decision to interview complainant was appropriate
under the circumstances. The AJ's finding that complainant has not
established that the agency's reasons are pretextual, is supported by
substantial evidence in the record.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p).
Assuming that complainant required a reasonable accommodation of a
transfer to Colorado Springs in order to perform the essential functions
of his job, and assuming that his request for a reassignment constitutes
a request for a reasonable accommodation within the meaning of the
Rehabilitation Act, as complainant states in his appeal brief2, he
must show that there was a vacant, funded position at Colorado Springs
for which he qualified, and to which he could have been reassigned.
Complainant has not made this showing. Therefore complainant's claim
of denial of accommodation in violation of the Rehabilitation Act must
fail.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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 (Z1008)
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
December 31, 2008
__________________
Date
1 Complainant states that he is a disabled veteran who had hand surgery,
depression, an ear tumor; and Post Traumatic Stress Disorder.
2 See Complainant's Appeal Brief at 7.
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0120083507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036