01a24987_r
12-30-2002
Allen M. McManes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Allen M. McManes v. United States Postal Service
01A24987
December 30, 2002
.
Allen M. McManes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24987
Agency No. 1G-741-0016-01
Hearing No. 310-A1-5377X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated August 16, 2002, 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. In his
complaint, complainant, a Supervisor Distribution Operations, EAS-16,
alleged that he was discriminated against on the basis of retaliation for
prior EEO activity. Specifically, complainant alleged that on or about
December 5, 2002, two managers inquired of a review committee member
and asked why the committee had listed complainant as one of the final
candidates for a Postmaster position and the vacancy announcement was
subsequently canceled and re-posted.<1> The record indicates that at
the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ, after a hearing,
issued a decision finding no discrimination, which was implemented by
the agency in its final action.
After a review of the record, the Commission finds that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency articulated a legitimate, nondiscriminatory reason for its
action. Initially, the record indicates that on or about July 10, 2000,
complainant applied for a promotion to a Postmaster vacancy, EAS-20.
With regard to the alleged claim, the agency asserted that after the
posting at issue was closed, the Manager of Personnel Services selected
three members of the review committee or panel that would consider the
applications and submit a list of the top five candidates. The agency
indicated that the review committee provided Human Resources with its
best qualified list of five candidates, which included complainant.
After this submission, two managers, including the Manager of Personnel
Services, testified that they inquired of one of the review members
as to whether the review committee had checked to see if any of the
applicants had been disciplined. The Manager of Personnel Services,
specifically, stated that even though the review committee had not
taken the discipline records of the applicants into consideration,
she determined that it would not be asked to re-do its work; therefore,
she forwarded the vacancy package material to the selecting official,
including the best qualified list. The selecting official, specifically,
testified that when she received the final package for the position, she
noted that two candidates therein, not complainant, were supervisors for
two Postmasters on the review committee. The selecting official stated
that she felt this was inappropriate and called the Human Recourse Office
to re-post the position.<2>
The Commission also finds that complainant failed to show that the
agency's reason was pretext for discrimination. Complainant did not
rebut the agency's argument that its action was nothing more than a
business decision without discriminatory motive. The Commission finds
that complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the basis of retaliation.
The agency's decision finding no discrimination is AFFIRMED.
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
December 30, 2002
__________________
Date
1The record indicates that complainant was,
previously, demoted to the present position from his former Postmaster,
EAS-21, position on July 1, 2000. This matter is pending before the
Merit Systems Protection Board.
2The record indicates that the position was re-posted in September 2000,
but no selection was made during this second posting. The record also
indicates that the position was posted a third time in January 2001, and
the vacancy was filled on March 10, 2001, by non-competitive voluntary
downgrade.