Lenny W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

0120180581 (E.E.O.C. Mar. 19, 2019)

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

Lenny W.,1
Complainant,

v.

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

Appeal No. 0120180581

Agency No. 4C440005317

DECISION

On November 24, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 7, 2017, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-
22, at the Agency’s Warren Post Office facility in Warren, Ohio.

On May 9, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age and reprisal for prior protected EEO activity when: (1) in
September 2015 and January 2016, the Agency denied his request for a lateral transfer; (2) in
June 2016, he was informed he was not selected for the South Post Office Operations Manager
(POOM) position; and (3) on December 30, 2016, he became aware that he was again not
selected for the South POOM position.

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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A Partial Acceptance/Partial Dismissal letter from the Agency to Complainant, dated May 25,
2017, indicates that Complainant’s claims relating to the lateral transfer requests in September
2015 and January 2016 and to his not being selected for the POOM position in June 2016 were
being dismissed as untimely, pursuant to 29 C.F.R. § 1614.107(a)(2). In so doing, the Agency
found that Complainant initially requested pre-complaint counseling with an EEO counselor on
January 25, 2017, which was more than 45 days after these alleged discriminatory acts.

The Agency accepted Complainant’s remaining claim relating to not being selected for the South
POOM position in on December 30, 2016 and conducted an investigation, which revealed the
following pertinent facts.

Complainant attested that the South POOM position was vacated in September 2015 and
requested a non-competitive lateral transfer, which was not granted. There was no selection from
the initial January 2016 posting and the position was reposted in April 2016. Pending the
fulfillment of the South POOM position, the employee who would be selected (the selectee) was
placed in this position on a detail, in an acting capacity. On June 7, 2016, another employee
replaced the selectee in this role. Subsequently, Complainant was informed that he was not
selected for the position and the selectee would be promoted effective July 9, 2016. The union
inquired as to whether the selection was made in violation of the 120-day rule, which is
discussed below. The position was subsequently cancelled again and reposted in September
2016.

Agency policy provides that there is a 120-calendar-day time limit on higher level temporary
assignments (details) pending selection of a person for the permanent placement. A person who
serves in such a vacant position for more than 120 calendar days is ineligible for placement into
that position. However, Agency policy provides some exceptions to this general rule. The time
limit does not apply if the assignment is to a position at the same or lower level, during the
temporary absence of an employee, to an officer-in-charge assignment, to an initial level
supervisor position, or to a headquarters position; it also does not apply in certain circumstances
involving a trailing spouse.

Complainant attested that he applied for the South POOM position at issue on September 19,
2016. The District Manager was the selecting official. As discussed above, the position was
posted three times –in January, April and September 2016, and Complainant was selected to be
interviewed for all three postings. Complainant believed the selectee was over the age of 50, but
did not meet all qualifications, as he was in violation of the 120-day rule. Complainant believed
his age was a factor because he is the youngest of the candidates who applied. He believes
retaliation is an issue because of two things. The first is his work representing employees as a
National Association of Postal Supervisors (NAPS) area vice president. The second is that he
filed an EEO claim on January 25, 2017, relating to another positing of the South POOM
position, alleging that his supervisor had improperly given another candidate extra points on the
KSA (knowledge, skills, and abilities) matrix during the selection process for having served in
the South POOM position in an acting capacity.

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The selectee was in the South POOM position in an acting capacity for more than 120 calendar
days. A letter from the selectee to the District Manager, dated November 14, 2016, indicates that
the selectee requested an exception to the 120-day rule, indicating that he had misunderstood the
application of the rule, based on information provided by the Northern Ohio Local Services
Department as to when the time began to run. Emails between Agency management and NAPS
representatives indicate that the Agency’s headquarters approved an exception to the rule, due to
“unique circumstances,” which were misinterpretations of the Agency policy. The selectee had
ben incorrectly informed as to when the 120-day time-period begins to run.

The District Manager attested that the South POOM position was posted from September 6 to 21,
2016. He was the selecting official. He did not select Complainant because he selected another
candidate. Their qualifications and KSAs were about the same. However, Complainant lacked a
clear and concise plan of action to turn the South POOM area performance in a positive
direction.

A memorandum for the Eastern Area Vice President, dated December 19, 2016, indicates that
during the interview, Complainant was very articulate and displayed extensive knowledge in
operational performance, productivity, service and budget goals. It indicates the selectee
demonstrated strong management skills and when questioned about the current performance of
the South POOM area, he provided in-depth knowledge of programs available to management
officials to identify the areas needing to be corrected; he demonstrated strong administration
skills in the application of national programs and systems developed to monitor the operational
performance, productivity, and delivery of mail; and he was very detail-focused and
demonstrated a keen understanding of the people issues that are a part of every process.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates his assertions regarding the alleged bases of his claim. He
asserts that his supervisor threatened him in a phone conversation based on information that he
provided as part of the current EEO claim and kept derogatorily referring to his work as a NAPS
representative. He also argues that his claim is supported by the fact that there was less than one
month between his protected activity and the adverse treatment.

Complainant also asserts that he scored higher than the selectee in terms of the KSA matrix. The
District Manager’s selection letter did not indicate that Complainant failed to have a clear and
concise plan of action to turn the South POOM area performance in a positive direction, although
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it did indicate another candidate failed to demonstrate in-depth knowledge required for the
position. He suggests that the manager confused them, as they have the same first name.

He also expresses his offense that the Agency’s briefs have referred to him as “she” and takes
this as indicating the Agency does not take his complaint seriously.

A March 9, 2017 Dismissal of Amendment indicates that Complainant, in his statement in
support of the instant appeal, alleged discrimination based on sex and retaliation when the
Agency’s EEO Services Analyst incorrectly referred to him as “she” and referred to “her
allegations.” The Agency dismissed this amendment in accordance with 29 C.F.R.
§ 1614.107(a)(8), as a claim about the manner in which a previous complaint has been processed,
i.e., a “spin off claim.”

In a March 21, 2018 statement, Complainant indicates his request to appeal the Agency’s March
9, 2017 dismissal, noting that, in his initial appeal letter, dated November 24, 2017, he expressed
his dissatisfaction with regard to the lack of seriousness that the Agency has taken with his
complaint, particularly referring to him as “her,” when he is male.

In response, the Agency submitted a letter, dated April 4, 2018. requesting that this issue be
consolidated with the Complainant’s appeal of the final agency decision and that the dismissal of
this claim, as a spin-off claim, be affirmed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Complainant has alleged that the Agency treated him disparately when he was not selected for
the South POOM position in December 2016. A claim of disparate treatment is examined under
the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For a complainant to prevail, he must first establish a prima facie case 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 Constr. 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 Tex. Dep’t of Cmty. 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
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by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The District Manager explained that he did not select Complainant for the position
because he selected another candidate whose qualifications and KSAs were about the same as
Complainants, but, during the interview, was better able to articulate a clear and concise plan of
action to turn the South POOM area performance in a positive direction. In the absence of
evidence of a discriminatory motivation, the Agency generally has discretion to choose among
equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259. In
addition, the Agency has the discretion to choose among applicants who have different but
equally desirable qualifications. See Canhan v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir.
1981). Complainant has not produced sufficient evidence to dispute the selectee’s qualifications
or establish that he has superior qualifications. See Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006).

We note that Complainant has alleged the selection process was in violation of the 120-day rule
and, therefore, contrary to Agency policy and/or the union agreement, separate and apart from
any issue of discrimination. However, such issues are outside the jurisdiction of the EEOC.

We also find that the dismissal of Complainant’s claims relating to his not being granted a lateral
transfer in September 2015 and January 2016 and the claim relating to his not being selected for
the POOM position in June 2016 were properly dismissed as untimely, pursuant to 29 C.F.R. §
1614.107(a)(2). Complainant’s initial contact with an EEO counselor was on January 25, 2017,
which was more than 45 days after these alleged discriminatory acts.

We also agree with the Agency’s dismissal of Complainant’s claim alleging discrimination based
on sex and retaliation when the Agency’s EEO Services Analyst incorrectly referred to him using
various forms of feminine pronouns, such as “she” and “her,” as a “spin-off” complaint. EEOC
Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency shall dismiss a complaint that
alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the
EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a “spin
off” complaint. MD-110 indicates further that “spin-off” complaints should be referred to the
agency official responsible for complaint processing and/or processed as part of the original
complaint. See id.; see also Complainant v. Dep’t of Health and Human Servs., EEOC Appeal
No. 05910159 (February 11, 1991).

That said, we find Complainant’s allegation that the Agency discriminated against him by using
incorrect pronouns fails to state a claim and the claim warrants dismissal, pursuant to 29 C.F.R. §
1614.107(a)(1). The Agency explained in its April 4, 2018 letter that these were mere
typographical errors. While unfortunate, they were not intentional. Therefore, we find that
Complainant has failed to allege sufficient facts, which if proven true and considered together,
would establish that he suffered harm or loss with respect to a term, condition, or privilege of
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employment for which there is a remedy and he is, therefore, not aggrieved within the meaning
of the regulations. See 29 C.F.R. §§ 1614.103, .106(a); Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The claim, as alleged, simply does not state a
viable claim of discrimination or unlawful retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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. 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.
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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 19, 2019
Date