Bobby Abernethy, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionAug 31, 2007
0120072344 (E.E.O.C. Aug. 31, 2007)

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