Britt W. Dunn, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 19, 2009
0120071794 (E.E.O.C. Mar. 19, 2009)

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