Jerry V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 20192019000240 (E.E.O.C. Mar. 29, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerry V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2019000240 Hearing No. 570-2014-00893X Agency Nos. 6U-000-0002-14 6U-000-0017-14 DECISION On September 11, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 9, 2018 final action concerning two formal complaints which claimed unlawful employment 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 Business Alliance Specialist at the Agency’s Dallas District Sales Department in Fort Worth, Texas. Complainant filed three formal complaints on March 5, 2014, August 7, 2014, and February 4, 2015, respectively. The Agency consolidated the three complaints for investigation. However, after Complainant withdrew a hearing request for the third complaint (Agency No. 6U-000-0004- 15), the Agency issued a final decision finding no discrimination, and the Commission affirmed 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. 2 2019000240 the Agency’s final decision on appeal. See Complainant v. U.S. Postal Service, EEOC Appeal No. 0120162736 (June 20, 2018). In the other two complaints, Complainant claimed that the he was subjected to harassment/a hostile work environment based on sex (male), age (over 40), and in reprisal for prior EEO activity 2 when: 1. on November 15, 2013, he was not selected for the position of 2370-0493 Sales Executive Senior, Major Accounts (EAS-24), advertised under Job Posting No. 73233757 (Agency No. 6U-000-0002-14, herein referred to as “Complaint 1”);3 and 2. on May 14, 2014, he was notified of his non-selection for the position of 22370-0481 Enterprise Account Director (EAS-25), Florida, advertised under Job Posting No. 76560103 (Agency No. 6U-000-0017-14, hereinafter referred to as “Complaint 2”). After the investigation of Complaints 1 and 2, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for a Decision Without a Hearing concerning the remaining claim in Complaint 1, referenced above, as well as Complaint 2. On August 2, 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 as a Business Alliance Specialist for the Agency’s Dallas District sales department in Fort Worth, Texas. Regarding Complaint 1, the National Manager, Major Account (female, over 40) was the selecting official for the positions in question. The Agency sought to fill seven vacancies nationwide. This posting was slated to fill positions for a new Sales team whose members would be assigned to pursue and close complex and high-value opportunities within the Major Account Mailing segment. The selectees would become members of the Major Accounts, Mailing Team. The selecting official stated that she convened a review committee consisting of three Agency officials to review the candidates’ resumes and recommended the best qualified candidates for interviews. 2 During the investigation, Complainant withdrew reprisal as a basis. 3 The record reflects that Complainant withdrew another claim concerning another non-selection for the position of Enterprise Account Director advertised under Job Posting No. 72436413 which was originally also raised in Complaint 1. 3 2019000240 The selecting official and the Manager of Sales, Major Accounts interviewed eleven candidates, including Complainant, by telephone. At the time, Complainant was not aware of anyone who was interviewed for the subject positions. Following the interviews, the selecting official chose six selectees for the subject positions, indicating she believed them to be the best qualified. The selecting official stated that she reviewed “the overall qualifications presented by the candidates in their ecareer application, national sales reports and interviews. I determined the best qualified candidates and made selections.” The selecting official chose not to fill the seventh advertised slot. The AJ noted that Complainant’s resume reflected over 20 years of sales experience working within the Agency. In 2011, Complainant was given the title of Manager of New Business Development. His resume described his performance requirements, but did not detail his sales revenue for any period between 2011-2014, or any other indices which would establish Complainant obtained new clients. Prior to that, Complainant worked as a Sales Specialist for 12 years. Furthermore, Complainant held detail and acting positions in sales management. The AJ noted that the six selectees (4 males, over 40 and 2 females, over 40) all had many years of professional sales experience in both the public and private sector. The selecting official stated that she did not select Complainant because he was not among the best qualified. Specifically, the selecting official noted that in his past fiscal year, Complainant’s sales achievement “was well below the selected candidate’s achievement for number of closed sales and revenue. The individual I chose demonstrated the ability to close sales at a greater velocity and for greater revenue and over-achievement of their individual goals.” Furthermore, the selecting official stated that Complainant’s sales achievement for the 2013 fiscal year was $10 million. Of all of the candidates, Complainant’s had the lowest overall closed sales. Complainant asserted that a named female employee (Employee 1) was given the opportunity to detail into the position he applied for. The selecting official stated, however, that Employee 1 did not apply for the subject position. The selecting official stated that Employee 1 was detailed to the position from November 25, 2013 to March 28, 2014. Regarding Complaint 2, the AJ noted that the promotional opportunity for the Enterprise Account Director (EAD), Customer Relationship Manager was advertised on April 8, 2014. The position required the selectee be “domiciled in Florida.” The announcement was posted service-wide. The EAD position required the successful candidate act as the liaison for the account’s key senior executives. The selectee would regularly meet with these executives to assess their mailing needs and generate solutions. The account for the position at issue was the Walt Disney Corporation in Florida. The AJ further noted that because there were fewer than 11 candidates for the subject position, the Customer Relationship Manager, also the selecting official, was the only management official involved in the selection process. 4 2019000240 The Customer Relationship Manager (male, over 40) (“selecting official 2”) stated that after a review of the candidates’ application packages, he ranked each candidate on the applicable Knowledge, Skills, and Abilities (KSAs) using a scale of 0-5, with zero being a minimum level of experience to 3 excellent. Complainant received an overall score of 10 and was ranked third. The record reflects that the other five candidates (two males, over 40 and three females, over 40), including the selectee, all resided and worked in Florida. Complainant worked and lived in Texas. Complainant did not indicate on his application that he had “a residence in Tampa, Florida.” Selecting official 2 stated that on or about April 24, 2015, he called Complainant at his work telephone and left a voicemail message to clarify the fact that he held a Texas driver’s license. Complainant did not return the call until after a selection had been made. Despite the residence “disqualification,” selecting official 2 proceeded to rate Complainant’s application in case he had relocated to Florida. Selecting official 2 stated that he chose the selectee for the subject position because she was best qualified for the subject position. Specifically, selecting official 2 stated that since December 2013, the selectee had been acting EAD for Disney. She had worked in sales for the Agency for approximately 6 years and had prior private sector sales experience. During her four-month detail, selectee “identified over $13 million in opportunities and closed $2.9 million in sales to Disney in FY 14.” Selecting official 2 stated that Complainant called him shortly after learning that he was not selected for the subject position. Complainant requested and received an exit interview. Selecting official 2 stated that he suggested Complainant “use real life examples as much as possible and to avoid generalizations.” In addition, Complainant had been told to address each of the KSAs as directly as possible. Based on this evidence, the AJ concluded the responsible management officials articulated legitimate, non-discriminatory reasons for the selection decisions made, which Complainant failed to prove was pretext masking discriminatory animus. The Agency, in its final action, 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. 5 2019000240 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. 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 responsible management officials 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 discrimination. 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: 6 2019000240 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. 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. 7 2019000240 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 29, 2019 Date Copy with citationCopy as parenthetical citation