Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionJan 7, 20150120133036 (E.E.O.C. Jan. 7, 2015) Copy Citation 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). 0120133036 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, 0120133036 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, 0120133036 4 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 0120133036 5 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 Copy with citationCopy as parenthetical citation