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