William J. Faraoni, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 30, 2009
0120091678 (E.E.O.C. Jun. 30, 2009)

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

4

0120091678