01a42355_r
06-28-2004
Dwain E. Boggs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dwain E. Boggs v. United States Postal Service
01A42355
June 28, 2004
.
Dwain E. Boggs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42355
Agency No. 1H-391-0007-02
DECISION
The record indicates that complainant filed an appeal from the agency's
decision dated January 16, 2004, finding no discrimination. In his
complaint, complainant, a Mail Handler, alleged that on September 18,
2001, he was discriminated against based on color (black), sex (male),
and in reprisal for prior EEO activity. Specifically, complainant
alleged that he was subjected to continuing threatening situations; he
was not allowed to leave after requesting medical help when his car was
blocked in; and, he was denied promotional opportunities, training, and
upward mobility. Complainant indicated that on the day of the alleged
incidents, he had parked his vehicle in an identified manager's parking
space and when he went out to leave after ending his tour, his vehicle
was blocked by the manager's truck. Complainant also indicated that
when he went back inside to ask the manager to move his truck so that
he could leave, a verbal altercation took place between them. As a
result of that incident, complainant was issued a letter of warning and
was suspended from the �204 program� denying him the opportunity to be
trained and serve in supervisor positions. The agency, in its decision,
determined that it asserted legitimate, nondiscriminatory reasons for
its actions, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the issuance of a letter of warning and the suspension from the
204 program. Specifically, the agency indicated that both complainant
and the manager were issued letters of warning as a result of the
verbal altercation of September 18, 2001. Also, an agency official
stated in his affidavit that as a result of the letters of warning
issued to them, complainant was removed from the 204 program and the
manager, similarly, was not detailed to higher level. The official also
stated that complainant was allowed to return to the program once the
letter was purged and the manager retired shortly after the incident.
The Commission also finds that complainant failed to show that the
agency's reasons were pretext for discrimination. Complainant did not
rebut the agency's arguments that its action was nothing more than a
business decision without discriminatory motive. The Commission finds
that complainant failed to show, by a preponderance of the evidence, that
he was discriminated against on the bases of color, sex or retaliation
for any of the alleged actions in the complaint.
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
June 28, 2004
__________________
Date