James P. Flynn, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionJun 17, 2010
0120101139 (E.E.O.C. Jun. 17, 2010)

0120101139

06-17-2010

James P. Flynn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.


James P. Flynn,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Western Area),

Agency.

Appeal No. 0120101139

Hearing No. 541-2006-00024X

Agency No. 1E-801-0068-05

DECISION

On January 9, 2009, Complainant filed an appeal from the Agency's December

19, 2008 final order concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Clerk at the Agency's General Mail Facility in Denver, Colorado.

On July 7, 2005, Complainant filed an EEO complaint alleging that he was

discriminated against on the bases of disability (asthma and depression)

and reprisal for prior protected EEO activity1 when:

1. From April 27, 2005, to June 23, 2005, management failed to keep

letter cases clean on a regular basis;

2. On May 6, 2005, management mishandled Complainant's medical

documentation;

3. On May 11, 2005, the Agency ordered Complainant to attend safety

meetings;

4. On an unspecified date, Complainant became aware that he did

not have a bid; and

5. On June 27, 2005, the Agency required Complainant to take annual

leave to meet with the National Labor Relations Board agent.

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 October 28, 2008.

The record indicated that the parties reached an agreement on claims (1),

(2), (3), and (5) at the hearing. Therefore, the October 28, 2008,

hearing was held solely on claim (4). As to claim (4), Complainant

clarified that his bid position listed him on Tour 2 incoming mail,

however in 2002; his bid position was changed to Tour 2 outgoing mail.

Complainant was not made aware of this change until 2005. As a result of

the designation of outgoing mail, Complainant missed out on opportunities

to work overtime.

Following the hearing on claim (4), the AJ issued a decision on December

8, 2008. The AJ found that Complainant failed to establish that he

was discriminated against as alleged in claim (4). The AJ found that

Complainant failed to show a prima facie case of disability discrimination

and of unlawful retaliation. 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.

CONTENTIONS ON APPEAL

Complainant appealed asserting that he did in fact show that the Agency's

reason for changing his designation from incoming to outgoing mail.

Complainant also alleged, for the first time on appeal, that the

Agency breached the settlement agreement reached during the hearing.

We note that Complainant has not previously raised the claim of breach

with the Agency. It is inappropriate for Complainant to raise this new

claim of breach of the settlement agreement for the first time as part

of this appeal. The Agency requested that the Commission affirm its

final order adopting the AJ's finding of no discrimination.

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, � 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17

(1983); Holley v. Dep't. 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 Dep't of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 (1981); Holly, EEOC Request No. 05950842; Pavelka v. Dep't

of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Upon review of the record, we find that the Agency articulated legitimate,

non-discriminatory reasons for its action. During the hearing, two Human

Resources personnel, namely the Human Resources Specialist (HR Specialist)

and Human Resources Assistant Manager (HR Manager), testified as to the

reason for the change in the language of the bid positions. Both the HR

Specialist and HR Manager noted that in 2002, bid positions were reviewed

and the language in the bid positions was cleaned up for consistency.

In particular, they noted that the bid position descriptions needed

to be changed to meet the actual assignments associated with the bids.

As a result, Complainant's position was changed from incoming mail to

outgoing mail to match the work Complainant was assigned.

We further determine that Complainant has not shown that the Agency's

reason was pretext for discrimination. Complainant testified that he

had been in the same bid position since 1999 and has always been working

outgoing mail. As such, the record shows that in 2002, Complainant's

bid was changed to match his assignment. We find that Complainant's

testimony supported the Agency's articulated reason for the change in

the language for the bid positions. As such, we find that Complainant

has not shown that the Agency's reason was pretext for discrimination

based on his disability and/or prior protected activity.

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 implementing the AJ's decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (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

June 17, 2010

__________________

Date

1 The record indicates that Complainant filed a previous EEO complaint,

however there is no information as to which statute he alleged was

violated.

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0120101139

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101139