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

Equal Employment Opportunity Commission

Mar 29, 2019

2019000240 (E.E.O.C. Mar. 29, 2019)

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.

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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.

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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.
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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.
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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:
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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.
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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