0120090826
05-12-2009
Lionel J. Hebert, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lionel J. Hebert,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090826
Agency No. 1G-701-0020-07
Hearing No. 461-2007-00121X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 28, 2008 final action 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the bases of national origin (African-American), sex (male), and age (51) when:
on February 23, 2007, his work schedule was changed from 3 p.m. - 11:30 p.m. with Saturday and Sunday off to a new schedule of 7:45 p.m. - 1:45 a.m. with Thursday and Friday off, and his hours were cut.1
The record reflects that a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ determined that complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of national origin, sex and age. Specifically, the AJ determined that the facility where complainant worked, located in New Orleans, was shut down in August 2005 due to Hurricane Katrina and complainant was temporarily reassigned to other facilities. The record also established that since 2003, complainant worked as a limited duty employee due to a work-related injury. In January 2007, the New Orleans facility reopened and complainant returned. His supervisor testified that after the reopening, she began preparing limited duty job offers for the employees that were returning to the facility. As part of this process, she said she received the medical restrictions of the limited duty employees and contacted the various managers to determine what limited duty work was available and then worked on matching restrictions to the work. It was in this context that complainant received his limited duty job offer with the new schedule. She stated that the facility needed employees to report at 7:45 p.m. because that was the time when mail arrived at the facility and needed to be processed in order to ensure timely delivery. This agency need, in combination with complainant's specific medical restrictions, resulted in the change in his schedule. The AJ also determined that complainant did not show that there were other jobs that needed to be done which were available within his medical restrictions during his original schedule. The AJ further concluded that complainant did not establish discrimination by showing that other employees had more favorable schedules because the scheduling of limited duty employees required individual assessments of the medical restrictions of particular employees and a matching of those restrictions with the work available.
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 a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action 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 (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
May 12, 2009
__________________
Date
1 Complainant's hours were cut by two hours per shift for approximately nineteen days and he was reimbursed for the lost time through workers' compensation.
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0120090826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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