Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Jan 7, 2015

0120133036 (E.E.O.C. Jan. 7, 2015)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.

Appeal No. 0120133036

Hearing No. 450-2012-00206X

Agency No. 6X-000-0032-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
May 23, 2013 final Agency decision (FAD) concerning her 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Dispute
Resolution Manager at the Agency’s Southwest Area EEO Compliance and Appeals Office in
Dallas, Texas. On October 31, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American), national origin
(African-American), sex (female), and age (55) when on July 18, 2011, she was notified that
she was not selected for the position of Regional Manager, EEO Compliance and Appeals,
EAS-25.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew her
request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

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2
In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. In particular, the selecting official (SO) affirmed that she interviewed
at least three candidates for the position, and each candidate was asked seven questions. SO
declared that Complainant was not selected for the position because she was not the best
qualified for the job. More specifically, SO stated that that she had many issues with
Complainant’s interview. SO was concerned with Complainant’s answers and questioned
whether Complainant had a good grasp of her current duties. Further, SO affirmed that
Complainant implied she had a handle of issues within the Region, but when asked, did not
have any solutions to those issues. SO noted that Complainant did not have a strong interview
and, unlike the selectee, did not give concrete examples when asked. SO added that some of
Complainant’s answers were non-responsive to the questions. SO averred that Complainant
“just kept talking about her good communication skills (incoherently) as an answer to every
question.” SO confirmed that the selectee was her first choice and another candidate (not
Complainant) was her second choice. SO stated that if either the selectee or her second choice
did not accept the position, she would not have offered it to any of the other applicants.

In attempting to establish that management’s reasons for its actions were pretextual,
Complainant argued that the selectee was less qualified than she and that he should not have
been selected for the position. The Agency found that, other than her opinion, Complainant
offered no other evidence to show that SO selected the selectee based on anything other than
his resume and interview. SO believed that the selectee had a stronger interview than
Complainant. The Agency concluded that Complainant failed to show that management’s
reasons for its actions were pretextual. As a result, the Agency found that Complainant had
not been discriminated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that SO’s selection decision was based upon her own subjective
criteria. Further, Complainant contends that the Agency failed to follow the proper selection
procedures. In addition, Complainant alleges that she was more qualified than the selectee.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
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3
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
Assuming arguendo that Complainant established a prima facie case of discrimination, the
Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its
actions as discussed above. More specifically, SO stated that she did not select Complainant
because she did not believe that she was the best qualified candidate for the position. SO
explained that Complainant did not have a strong interview and, unlike the selectee,
Complainant did not give concrete examples when asked, and some of her responses were
nonresponsive to the question. ROI, at 38. For example, SO stated that Complainant had
acted as Manager; however, when asked what ideas she had to remedy issues in the Region,
she did not have any ideas or solutions. Id. at 96. Based on interview performances, SO
determined that the eventual selectee and a second candidate were her top two choices.
Agency’s Motion to Supplement Record, Ex. 1. After contacting the references for those two
candidates, SO chose the selectee believing that he was much more qualified for the position.
Id

. ROI, at 95.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish
pretext is by showing that her qualifications are observably superior to those of the selectee.
Bauer v. Bailar

, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not
the only way Complainant may establish pretext as to her non-selection claim.
As proof of pretext, Complainant contended that she should have been selected because she
was an “EEO professional” having served in various EEO positions with the Agency for
approximately 28 years. The Commission notes that number of years of experience, alone, is
insufficient to establish that a candidate's qualifications are observably superior. See Kopkas
v. U.S. Postal Service

, EEOC Appeal No. 0120112758 (Oct. 13, 2011). Further,
Complainant's EEO experience, alone, is not sufficient to establish that her qualifications were
observably superior to the selectee’s. In this case, the selectee had attributes that justified his
selection, and SO affirmed that she believed the selectee was better equipped to meet the
Agency's needs.
SO stated that Complainant’s interview was not as strong as the selectee’s. SO maintained that
she believed that Complainant’s interview responses were deficient given her current role,
which made her question whether Complainant had a good grasp of her current duties. ROI, at
96. Additionally, SO asserted that Complainant excessively emphasized her communication
skills as an answer to every question. Agency’s Motion for Summary Judgment, Ex. 4.
Complainant disagrees with SO’s opinion that she overly focused on her communication skills,
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but has presented no evidence rebutting SO’s assessment as pretext for unlawful
discrimination.

The Commission notes that in the absence of evidence of unlawful discrimination, the
Commission will not second guess the Agency's assessment of the candidates' qualifications.
Tx. Dept. of Cmty. Affairs v. Burdine

, 450 U.S. at 259. As Complainant chose to withdraw
her hearing request, the Commission does not have the benefit of an Administrative Judge's
credibility determinations after a hearing. Therefore, the Commission can only evaluate the
facts based on the weight of the evidence presented. The Commission finds that the record is
devoid of any evidence that the Agency's selection or the selection process was tainted by
discriminatory animus. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that she
was subjected to discrimination as alleged.

CONCLUSION
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

(M0610)
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), at 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 77960, Washington, DC 20013. 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
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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

(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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
January 7, 2015