Gene H. Horne, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.

Equal Employment Opportunity CommissionMay 14, 1999
01973873 (E.E.O.C. May. 14, 1999)

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