01973873
05-14-1999
Gene H. Horne, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Gene H. Horne v. United States Postal Service
01973873
May 14, 1999
Gene H. Horne, )
Appellant, )
) Appeal No. 01973873
v. ) Agency No. 4-J-460-1067-94
) Hearing No. 240-95-5041X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision ("FAD") concerning his complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his complaint, appellant alleged that he was discriminated against on
the bases of race (black) and age (45) when he was not selected for the
position of Manager, Sales, EAS-22. This appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a Manager, Commercial Accounts,
EAS-20 at the agency's Greater Indiana District Office, filed a formal
EEO complaint with the agency on March 22, 1994, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission ("EEOC") Administrative Judge ("AJ").
Following a hearing, the AJ issued a Recommended Decision ("RD") finding
no discrimination.
Following United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-14(1983), the AJ concluded that, since the agency
had established legitimate, nondiscriminatory reasons for its conduct,
she could dispense with the prima facie inquiry and proceed to the
ultimate stage of the analysis, i.e., whether the complainant has proven
by preponderant evidence that the agency's explanations were a pretext
for discrimination. The agency stated that pursuant to reorganization
by national headquarters, the jobs of appellant and his supervisor
were abolished in lieu of two new positions, Manager, Customer Service
Support, EAS-24 and Manager, Sales, EAS-22. In filling the new positions,
headquarters informed the district managers that there were no incumbency
rights and that selections could only be made among the two displaced
employees and the district's current National Account Manager. Using
these guidelines, appellant's District Manager ("DM") selected appellant's
supervisor for the Manager, Customer Service Support position and the
National Account Manager ("selectee") for the Manager, Sales position.
Appellant was placed in the National Account Manager position. The DM
stated that in filling the Manager, Sales position, he tried to create
a positive situation for both appellant and the selectee. He stated
that the selectee would receive a promotion from EAS-21 to EAS-22 and
the appellant would receive a promotion from EAS-20 to EAS-21. The DM
also stated that he believed that the selectee was a better candidate
for the Manager, Sales position because he was a creative thinker and
had experience with the agency's highest level customers as the National
Account Manager. The AJ concluded that, notwithstanding the subjective
nature of the DM's decision, appellant failed to establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In its FAD, the agency adopted the AJ's RD.
On appeal, appellant contends that the AJ erred in weighing the evidence
and recommending a finding of no discrimination. The agency responds
by restating the position it took in its FAD and requests that we affirm
its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We agree with the AJ and find that
appellant failed to present sufficient credible evidence demonstrating
that the DM's selection was motivated by appellant's race or age.
Therefore, the Commission discerns no basis upon which to overturn the
AJ's finding of no discrimination in this matter. In this regard, the
AJ made specific credibility findings which are entitled to deference
due to the AJ's first-hand knowledge, through personal observation,
of the demeanor and conduct of the witnesses. See Esquer v. United
States Postal Serv., EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision which
adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 14, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations