01a41184
03-31-2005
Lawrence Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lawrence Thomas v. United States Postal Service
01A41184
March 31, 2005
.
Lawrence Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41184
Agency No. 4-H-390-0137-02
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a PTF Letter Carrier at the agency's Moody St Station facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 14, 2002, alleging that he was discriminated
against on the bases of race (African-American), sex (male), color
(dark), and reprisal for prior EEO activity when:
(1) On June 12, 2002, complainant was accused of stealing company time
and time was taken from his route.
On August 15, 2002, complainant was forced to spend more time walking
than driving, resulting in a foot injury which forced complainant to
seek medical attention.
On July 25, 2002, complainant was issued a Letter of Warning and denied
a union steward.
On August 28, 2002, complainant was issued a Seven-Day No-Time-Off
Suspension for Failure to Follow Instructions and Unsafe Work Practice.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, however, on May 5, 2002, complainant
withdrew his hearing request and asked that the agency issue a final
decision.
In its final decision, the agency concluded that it presented a
legitimate nondiscriminatory reason for its actions which complainant
failed to rebut. Regarding issue (1), the agency concluded that although
the Supervisor observed complainant on the clock for one hour and eight
minutes while not working, complainant was not accused of stealing time,
nor was complainant disciplined in any manner. Regarding issue (2),
the agency found that complainant was not forced to walk more than drive
because complainant did not work on the day in question. Regarding issue
(3), the agency concluded that complainant received a Letter of Warning
because he was in violation of the M-39, Management of Delivery Services,
which requires the use of the satchel when delivering mail on foot.
Regarding issue (4), the agency concluded that complainant received
the 7-Day Suspension for Failure to Follow Instructions and Unsafe Work
Practice for driving his postal vehicle with the driver's side door open,
without the lap of shoulder belt on. The agency determined that since
complainant was made aware of the postal rules and regulations prior
to the violations, he was charged for the violation.
On appeal, complainant contends that the agency misdefined issue (2).
Complainant contends that on August 15, 2002, he was forced to see a
physician because of the severe pain in his foot, however, he did not
say that he worked on that day. Complainant states that the unnecessary
walking the supervisors demanded of him aggravated his foot causing some
loss to the use of it.
The agency requests that we affirm its final decision.
The Commission finds that complainant presented no persuasive evidence
to show that the Supervisor's actions were discriminatorily motivated
because of complainant's race, color, sex or reprisal. We find no
evidence to indicate that complainant suffered any adverse action,
or was discriminated against when the Supervisor allegedly accused
him of stealing time. Moreover, there was no evidence in the record
to show that time was actually taken off of complainant's route as a
result of being accused of stealing time. We further find that the
record was void of evidence to support complainant's contention that
the Supervisors demanded that he unnecessarily walk, nor was there
evidence to show that complainant was forced to walk more than other
Letter Carriers outside his protected group. Regarding issues (3) and
(4), a review of the record shows that the Supervisor has issued similar
disciplinary actions to Letter Carriers outside complainant's protected
group. Moreover, complainant has failed to present evidence to rebut the
agency's contention that he was disciplined as a result of his failure
to comply with the regulations for Letter Carriers while delivering mail.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
final decision.
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
March 31, 2005
__________________
Date