0120091678
06-30-2009
William J. Faraoni, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William J. Faraoni,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091678
Agency Nos. 1G-754-0026-07
1G-754-0041-06
Hearing No. 450-2008-00061X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 12, 2009 final action concerning two
equal employment opportunity (EEO) complaints of 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.
Complainant alleged that the agency discriminated against him on the
bases of disability (back and anxiety disorder)1 and in reprisal for
prior EEO activity under when:
management permitted or contributed to a hostile work environment and
did not address known co-worker comments regarding complainant's work
assignments, disbelief in his limitations, suggesting that complainant was
receiving special treatment regarding his assignments, mocking complainant
and vandalizing complainant's special chair (Agency No. 1G-754-0041-06,
hereinafter referred to "Complaint 1"); and from January 3, 2007 through
January 30, 2007, complainant was denied reasonable accommodation and/or
light duty regarding work hours (Agency No. 1G-754-0026-07, hereinafter
referred to "Complaint 2").
The record reflects that a hearing was held before an EEOC Administrative
Judge (AJ) on April 3, 2008.2 After considering the testimony of the
witnesses, the AJ issued a decision on January 23, 2009, finding no
discrimination. Therein, the AJ determined that complainant failed to
establish a prima facie case of reprisal discrimination because he did
not establish that his second-level supervisor was aware of his prior
protected activity.
Regarding the disability claim, the AJ concluded that complainant
is a qualified individual with a disability inasmuch as he was able
to do the essential elements of the job which was modified for him
to accommodate his limitations. The AJ noted that a review of the
record reflects that complainant was accommodated time and time again.
The AJ also noted that in regard to one change of schedule that was not
approved, the accommodation issue was not in question. The AJ concluded
while complainant could do the essential elements of his position, he
just did not want to work on Tour 3 with Tour 3 employees because of
an alleged anxiety for which he provided no documentation in support of
his contentions. Assuming the truth of all complainant's statements, the
AJ determined that complainant did not establish a prima facie case of
harassment based upon his disability. The AJ concluded for the purpose
of this analysis, and assuming the accuracy of complainant's version
of the events, he was unable to conclude that the few incidents about
which complainant alleged were sufficiently severe or pervasive so as
to render his work environment hostile.
Further, the AJ determined regardless of whether complainant established
a prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ noted
that complainant received multiple changes of schedule, one after the
other including one after the time he was denied the requested change.
The AJ also noted that the agency took actions which insured that
complainant was able to secure a bid job which, in affect, gave him the
permanent change of schedule he appeared to be seeking.
With respect to complainant's harassment claim, the AJ found that the
agency took prompt and appropriate corrective action after learning of
complainant's allegations of harassment. The AJ noted that the agency
requested a climate assessment be conducted so that the working conditions
and environment could be assessed by an outside observer. The AJ noted
that the assessment moved forward quickly and its primary recommendation,
that management address the staff concerning inappropriate verbal and
nonverbal conduct, was promptly implemented. Specifically, the AJ
noted that there were no further complaints brought to the attention of
management after that process.
In addition, the AJ noted that complainant informed various individuals
that Tour 3 employees treated him poorly because of his actions when
he had been an acting supervisor. The AJ determined "it is far easier
and more rational to conclude that whatever actions were actually
taken against Complainant were taken because of his behavior as an
acting supervisor than because he was an individual with a disability.
This is particularly so when Complainant worked among other individuals
who had limitations and they were not treated as poorly as Complainant
contends he was treated." Finally, the AJ concluded that complainant
did not prove, by a preponderance of the evidence, that the agency's
proffered reasons for its action were a pretext for discrimination.
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).
After careful review of the record in its entirety, as well as
consideration of the appeal, 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
June 30, 2009
__________________
Date
1 For purposes of analysis only, we assure, without finding, that
complainant is an individual with a disability.
2 The record reflects that the AJ consolidated Complaints 1 - 2 prior
to the April 3, 2008 hearing.
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0120091678
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091678