0120071794
03-19-2009
Britt W. Dunn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Britt W. Dunn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071794
Hearing No. 451-2006-00116X
Agency No. 4G-780-0097-06
DECISION
Complainant filed an appeal with this Commission from the January 12,
2007 agency decision which implemented the December 13, 2006 decision
of the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges 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. Specifically, complainant has alleged that the agency
discriminated against him on the basis of reprisal for prior EEO activity
when: (1) on January 19, 2006, the Station Manager made inappropriate
remarks in a safety meeting; (2) on January 31, 2006, complainant was
issued a 14-day suspension; and (3) on February 1, 2006, complainant
was issued a Letter of Warning (LOW).
A hearing was held before the AJ. In her decision, the AJ upheld the
agency's partial dismissal of the complaint regarding claims (1) and (2).
The agency found that complainant was not aggrieved by remarks at issue
in claim (1), so claim (1) was dismissed for failure to state a claim
pursuant to 29 C.F.R. �1614.107(a)(1). The agency found that complainant
was never issued a 14-day suspension, so claim (2) was dismissed for
failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).
Regarding claim (3), the AJ concluded that complainant was issued the
LOW, later reduced to an official discussion, because he had used
unauthorized penalty overtime on January 18, 2006, and not for any
discriminatory reason. The AJ noted that this was not the first time
that complainant had had difficulties with use of unauthorized overtime
and that complainant was the only employee to have remained out until
almost midnight delivering mail during the 20 years that the Delivery
Supervisor and the Supervisor of Customer Services had been supervisors.
The AJ also found that the Supervisor of Customer Services who issued
the LOW was in the station for just a few months and was unaware of
complainant's prior EEO participation.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review, the Commission finds that the AJ's dismissal of claims (1)
and (2) was proper and, further, that her finding of no discrimination is
based upon substantial evidence. The agency has articulated a legitimate,
nondiscriminatory reason for its action in disciplining complainant and
complainant has failed to show that the agency's reason was pretextual.
Complainant has failed to show by a preponderance of the evidence that
the agency was motivated by discriminatory animus in disciplining him.
The agency's decision is AFFIRMED.
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
March 19, 2009
__________________
Date
2
0120071794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
0120071794