0320090001
11-14-2008
Alphonso H. Dunbar, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alphonso H. Dunbar,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090001
MSPB No. CH-0752-08-0045-I-1
DECISION
On October 22, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of 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.
Petitioner, who was a supervisor, alleged that he was discriminated
against on the basis of reprisal for prior protected EEO activity under
Title VII and the Rehabilitation Act when he was removed by letter of
decision dated September 13, 2007, for absence without official leave
(AWOL), failure to maintain regular attendance, and failure to follow
postal service leave requesting procedures in connection with his entire
absence from March 31, 2007 to May 17, 2007.
Following a hearing, the MSPB issued an initial decision upholding the
charges and removal, and finding no reprisal discrimination. The Board
denied petitioner's petition for review. In sustaining the charges, the
MSPB recited the parties' stipulation that petitioner was absent from
March 31, 2007 to May 17, 2007; and found that he failed to provide a
reasonable basis for his absence, despite being requested and required
to do so. Petitioner attributes most of his absence to not being given
supervisory duties, and fear of reprisal for various accusations he made
against management in late March 2007.
Agency management testified that petitioner supervised mail processing,
and the initial decision found he admitted such at the hearing.
He testified that he was a supervisor, but had little to do because the
operation was very small and his three subordinates were experienced and
needed no supervision. The record shows petitioner was not permitted
to perform supervisory duties related to window financial matters and
entering leave into the agency's electronic leave tracking system.1
Petitioner did not produce evidence to establish that the agency's
actions were prompted by discriminatory animus rather than his extended
and unjustified absence.
Petitioner testified that he feared reprisal because of his various
accusations in late March 2007, but did not point to any actions the
agency took or threatened to take thereafter which justified his absence.
Instead, he pointed to his fears, based on alleged past incidents of
alleged reprisal, none of which the record shows were proven to be
discriminatory.2
EEOC regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
On petition, petitioner makes no argument. Based upon a thorough review
of the record, it is the decision of the Commission to concur with the
final decision of the MSPB finding no discrimination. The Commission
finds that the MSPB's decision constitutes a correct interpretation of
the laws, rules, regulations, and policies governing this matter and is
supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
November 14, 2008
__________________
Date
1 Nevertheless, petitioner had authority to grant leave requests.
2 In Dunbar v. United States Postal Service, EEOC Appeal No. 0120064848
(April 10, 2008), the Commission found no race and sex discrimination
on several past agency actions, including his reassignment to another
location in May 2005, allegedly not being paid for all the hours he
worked from February 2005 to May 2005, his reporting time from May 2005
to September 2005, and being forced to work with insufficient staff on
May 28, 2005. In his testimony, petitioner raised some or all these
examples as reasons he feared reprisal.
??
??
??
??
2
0320090001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320090001