0120072344
08-31-2007
Bobby Abernethy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Bobby Abernethy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120072344
Agency No. 4C-000-0008-06
Hearing No. 470-2007-00050X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 15, 2007 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against him
on the bases of race (Caucasian), national origin (American), sex (male),
and age (D.O.B. 10/08/47) when: (1) on April 7, 2006, he was informed of
his non-selection for the position of Postmaster in Cincinnati, Ohio.
Complainant also alleges discrimination on the bases of race, sex and
age when: (2) on May 10, 2006, he became aware that he was not being
paid correctly. Complainant alleged discrimination on the bases of race,
sex, age and retaliation (prior EEO activity) when: (3) on June 7, 2006,
he became aware of his non-selection for the Postal Career Executive
Service (PCES) succession list for the positions of District Manager 2
and Plant Manager 1.
The record reflects that during the relevant time period, complainant
was employed as a Manager, Post Office Operations for the Richmond
District in Richmond, Virginia. Complainant alleged that the agency's
Vice President, Area Operations (VP) intentionally discriminated against
him as alleged above. The agency's final decision (FAD) found that
regarding complainant's allegations of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Regarding allegation (1), the agency noted that the VP stated he
chose the selectee for the Postmaster position at issue due to her
work in a variety of Postmaster positions with increasing levels of
responsibility, and as she had successfully worked in a PCES Postmaster
2 position. The VP stated that in making his selection, he relied on
the agency's Handbook EL-380 and Management Instruction EL-384-2006-1.
Regarding complainant's allegation (2), the FAD noted that an agency Human
Resources Specialist (HRS) stated complainant was a "saved PCES" employee,
meaning that he retained all PCES benefits, such as health benefits,
but his salary was limited to the maximum salary of the position to
which he had been reassigned. As a saved PCES employee, complainant's
salary was covered by the Executive Pay System, and entitled him to
two (2) additional pay components: (1) a lump sum payment; and (2) an
increase to his base salary. The HRS stated that complainant continued
to receive his lump sum and performance-based percentage increases to
his base salary since 1993.
Addressing complainant's allegation (3), the FAD found the evidence
suggested that while there is no specific criteria for inclusion on
the succession lists for the District Manager 2 or Plant Manager
1 positions, the nominated candidates are expected to demonstrate
sufficient abilities to indicate a high probability of success.
The FAD noted that while complainant's qualifications, background and
experience met the qualifications of the District Manager 2 position, he
had not demonstrated any recent experience to show he could perform as a
mid-level District Manager without adversely affecting customer service.
The FAD also noted that complainant did not meet the requirements for a
Plant Manager 1 position as he did not have experience in either a mid
or large-sized automated processing plant. The Chair of the Corporate
Succession Plan (CSP) committee stated that two (2) employees should
be added to the succession list as they had experience successfully
managing large operations. Further, the Manager, Human Resources for
the agency's Capital Metro Area stated that she was a member of the CSP
committee and that complainant was not recommended for inclusion on the
District Manager 2 list as he had not demonstrated any recent experience
at a less responsible position. Further, the Manager, Human Resources
stated that complainant was not placed on the Plant Manager 1 succession
list as he had not demonstrated that he could manage a large processing
and distribution center and did not have any other relevant experience.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
___8-31-07_______________
Date
2
0120072344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072344