William R. Devens, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 20, 2009
0120071395 (E.E.O.C. Mar. 20, 2009)

0120071395

03-20-2009

William R. Devens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William R. Devens,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071395

Agency No. 4H-335-0107-05

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination. Complainant alleged that he was

subjected to discrimination on the basis of age (58) when, on May 31,

2005, complainant was issued a Letter of Warning (LOW) for not properly

displaying his identification badge.

We find that the agency articulated a legitimate, nondiscriminatory reason

for issuing complainant the LOW. The Supervisor of Maintenance Operations

(SOP) stated that a Security Audit was conducted on May 10, 2005, and

that complainant was reported by an audit team member as being one of the

employees approached for not displaying his identification badge. As a

result of the Security Audit findings, a meeting were held with each tour,

and the Acting Manager of Distribution Operations (ADMO) advised that he

(ADMO) had been issued a LOW as a result of the Security Audit results.

Afterwards, the SOP said that she was instructed by the Manager of

Maintenance Operations (MMO) to issue complainant a LOW. The SOP

asserted that the Tour 1 Supervisor of Maintenance Operations (SOP1)

was also instructed to issue LOWs to Employees A & B. The SOP claimed

that she followed orders and conducted an interview with complainant on

May 11, 2005. The SOP stated that, after she submitted the paperwork

to issue complainant the LOW, she received a call from Tampa Labor,

who told her the LOW should have been an official discussion, which she

agreed to do; however, the SOP stated that, after MMO was notified, the

LOW was still issued. The SOP claimed that she simply followed orders.

The MMO stated that complainant was found not wearing his identification

badge during a security audit and denied having instructed the SOP to

issue the LOW. The MMO said that the identification badge policy was

part of the Standard Operating Procedures for building security. The MMO

asserted that complainant and Employee A were found not wearing their

badges during the audit. The MMO claimed that he had no knowledge of

Employee B not wearing his identification badge at the time of the audit.

The MMO reported that the type of discipline issued was at the discretion

of the supervisor, and that SOP1 decided to give Employee A an official

discussion rather than discipline him.

SOP1 stated that Employee A (also over 40 years of age) was found

not properly displaying his identification badge, but denied that

Employee B was ever mentioned in his audit. The SOP1 said that he had

a discussion with Employee A concerning his failure to properly display

his identification badge. The SOP1 asserted that the MMO told him that,

due to the seriousness of the infraction, he should have issued discipline

to Employee A instead of giving a discussion; however, the SOP1 claimed

that he persistently stressed that he had already addressed the issue

and felt that only a discussion was justified.

On appeal, complainant agrees that Employee A had a different

supervisor than complainant, but complainant's focus is really that his

supervisor was discriminating against complainant on the basis of age.

The Commission finds that complainant failed to rebut the agency's

articulated legitimate, nondiscriminatory reasons for issuing complainant

a Letter of Warning. Complainant failed to show, by a preponderance of

the evidence, that he was subjected to discrimination on the basis of age.

Complainant has simply not linked the discipline to complainant's age.

The agency's decision finding no discrimination 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 20, 2009

__________________

Date

2

0120071395

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013