Andrew L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Mar 27, 2019

2019000645 (E.E.O.C. Mar. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Andrew L.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.

Appeal No. 2019000645

Hearing No. 532-2016-00022X

Agency No. 4V-363-0001-15

DECISION

On October 5, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 26, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Supervisor, Vehicle Maintenance, EAS-17,
at the Agency’s Vehicle Maintenance Facility (VMF) in Shaker Heights, Ohio.

On July 31, 2015, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American) and age (over 40) when, on

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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June 15, 2015, he was notified that he was not selected for the position of Manager, EAS-19, at
the Shaker Heights VMF.

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. On September 7, 2018, the AJ issued a decision by summary
judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:

Complainant had been employed by the Agency since 1979. During the relevant period,
Complainant was a level EAS-17 supervisor.

In 2015, the VMFs nationwide were reorganized to fall administratively under Headquarters
instead of the various districts. In the Eastern Area, all supervisors and managers at thirty-five
VMFs had to find new positions and all were encouraged to apply to all openings within their
commuting range, which was approximately fifty miles.

The Manager of Fleet Operations, EAS-25, (“the Selecting Official”) (Caucasian, year of birth
1953) was assigned to do all the interviewing and selecting of those applying for positions rated
at EAS-17 and above in the Eastern Area VMFs, including the Manager, Shaker Heights VMF
position at issue.

On or about May 20, 2015, the position of Manager, Shaker Heights VMF was posted
nationwide. This posting was near the time the Selecting Official took over as Manager of Fleet
Operations. Complainant was one of the four applicants placed on the referral list for
consideration, which consisted of three African-American males and one African-American
female. At the time of the selection, the Selecting Official did not know the race or age of the
four candidates and had neither met nor worked with any of the four candidates either before or
at the time of the national VMF restructuring. In addition, none of the four candidates reported
to the Selecting Official at the time or at least five years prior to the instant selection.
Complainant did not know the ages of the other three candidates other than asserting that they
were “younger than [he].”

The Selecting Official interviewed all four candidates, including Complainant. Following the
interviews, the Selecting Official chose the selectee (African American male), asserting he was
best qualified. The record reflects that the oldest candidate (Complainant) received an identical
“raw score” of 16 as the second youngest candidate (African-American male). The highest raw
score of 21 was given to the second oldest candidate (the selectee) and the lowest raw score 9
went to the youngest (African-American female).

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The Selecting Official explained that he did not select Complainant for the subject position
because “he gave a poor interview. He did not convey his strengths when I interviewed him.”
Specifically, the Selecting Official stated that Complainant “gave me a lot of one-word or short
answers. [Second youngest candidate] and [selectee] would answer at greater length, fleshing
out points from their eCareer Profiles. They also emphasized that they had given a lot of Postal
Service training.”

Furthermore, the Selecting Official offered the Canton [Ohio] VMF Manager position to
Complainant at the end of his interview because, “I thought he could benefit in his career
building from a period of time actually managing a free standing if smaller VMF. Canton’s
Manager was only a level EAS-18 while Shaker Heights was newly a level EAS-19 position,
having been elevated from being an auxiliary office…[Complainant] explained that he did not
want the Canton position; he applied only because it was recommended that all the displaced
supervisors apply to as many vacant positions as possible. He did not want the approximately 60
mile commute each way. I accepted his reasoning, did not hold it against him for the Shaker
Heights position and the Canton position was filled later with [named selectee].”

Based on this evidence, the AJ concluded the responsible management officials articulated
legitimate, non-discriminatory reasons for the selection decision made, which Complainant failed
to prove was pretext masking discriminatory animus. The Agency, in its final decision, adopted
the AJ’s decision. The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
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A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the Selecting Official clearly
articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by
a preponderance of the evidence, that these proffered reasons were a pretext designed to mask
race or age discrimination. The selectee was also African American and was the second oldest
candidate.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 27, 2019
Date