Lyle R. Sours, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2006
01A62553 (E.E.O.C. Sep. 28, 2006)

01A62553

09-28-2006

Lyle R. Sours, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Lyle R. Sours,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A62553

Agency No. 1G-761-0045-04

Hearing No. 310-2005-00235X

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination. Complainant alleged discrimination

on the bases of race (Caucasian) and color (white) when he was issued a

Letter of Warning charging complainant with unsatisfactory performance and

failure to follow instructions based on an incident that took place on

February 3, 2004.

Following a hearing, an EEOC Administrative Judge (AJ) issued a decision on

July 20, 2005, finding that complainant had not been discriminated against.

Specifically, the AJ found that the agency presented legitimate,

nondiscriminatory reasons for its actions, which complainant failed to

rebut. On October 17, 2005, the agency, fully implementing the AJ's

decision, issued a decision finding no discrimination. Thereafter,

complainant filed the instant appeal.

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.

We find that the agency articulated a legitimate, nondiscriminatory reason

for issuing complainant a Letter of Warning. The Acting Manager of

Distribution of Operations (AMDO) stated that, on February 3, 2004, she was

instructed by her Plant Manager to conduct an audit to determine which

employee's time cards were out of place, i.e., out of their designated

areas. The AMDO asserted that the Finance Office conducted similar

surprise audits on the other two tours' time cards. The AMDO claimed that

the Finance Office had reported to the Plant Manager that employees were

clocking out outside the designated areas. The AMDO reported that she and

the other acting MDOs divided the work areas and discovered that there were

five individuals whose time cards were not at their assigned time card

racks. With respect to the Automation work area, the AMDO articulated that

she found that complainant and four other employees' time cards were not

there. The AMDO said that she told the supervisors over that area to

address this situation with the employees.

Consequently, the Supervisor of the Automation Area (SAA) stated that all

five employees were uniformly issued letters of warning as discipline over

their time cards being out of place on February 3, 2004. The SAA stated

that she recalled that the AMDO had specifically instructed the supervisors

to take the proper disciplinary step concerning those whose time cards had

been found out of place on February 3, 2004. The SAA asserted that since

they had all received the same group discussion about the proper location

for time cards, all five employees merited letters of warning.

After a review of the record, the Commission finds that complainant has

failed to rebut the agency's legitimate, nondiscriminatory reasons for its

action. Additionally, the Commission finds that complainant has failed to

show, by a preponderance of the evidence, that he was discriminated against

on the bases of race or color. Moreover, the Commission finds that the

AJ's decision is supported by substantial evidence.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

September 28, 2006

__________________

Date