[Redacted], Alvinia S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 18, 2022

Appeal No. 2020005215 (E.E.O.C. Jan. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvinia S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020005215 Agency No. 4C-000-0001-18 DECISION On August 18, 2020, 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 July 14, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager, Human Resources, EAS 24, at the Agency’s Western New York District in Buffalo, New York. On December 27, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and sex (female)2 when: from July 24, 2018, and continuing, the Agency discouraged her from applying for positions and had secretive processes to keep her from being able to apply for positions. 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 We note that Complainant withdrew age as basis and this basis has been excluded from consideration. 2020005215 2 Complainant’s complaint, which included additional claims, was initially dismissed in part by the Agency for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), because Complainant did not apply for any of the positions at issue. In Alvinia S. v. U.S. Postal Serv., EEOC Appeal No. 2019002102 (May 21, 2019), we determined that Complainant’s allegations included multiple instances of alleged discouragement or secretive application and selection processes. Specifically, the appellate decision noted that Complainant was alleging that, in multiple instances, the Agency posted misleading vacancy announcements, including such things as failing to disclose that consideration for an alternative domicile location would be given; discouraging her from applying for positions; or, alternatively, acting secretly in not posting positions or otherwise selecting employees. Id. Therefore, we remanded the complaint back to the Agency with instructions to investigate the complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency described five specific positions at issue.3 The Agency asserted that although Complainant was qualified for the positions, Complainant failed to apply for any of the positions. As such, the Agency determined that Complainant failed to establish her prima facie case of disparate treatment regarding the non-selections. The Agency further noted that Complainant’s claim fails because the selectee for one of the positions is a member of the same protected classes as Complainant, which discounts any inference of discrimination. Therefore, the Agency concluded that Complainant failed to establish a prima facie case regarding the promotions. The Agency explained that assuming for the sake of argument that Complainant had established a prima facie case, management officials articulated legitimate, nondiscriminatory reasons for their actions. The Agency found that four of the selectees were recommended by Review Committees after applying and being interviewed for the positions. Following their selections, the selectees requested to change their domiciles. Regarding the final selectee, the Agency explained that the selectee had requested a non-competitive lateral transfer. Management officials reiterated that Complainant had the same opportunity to apply competitively and/or request a non-competitive lateral transfer. Finally, the Agency determined that there was nothing that showed by a preponderance of the evidence that the Agency’s explanations were pretext for discrimination. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 3 The Agency discussed four Employee Engagement Ambassador positions and a Learning Development/Diversity Specialist position, which were posted between June 2018 and July 2018. Neither party has indicated that additional positions are at issue. 2020005215 3 CONTENTIONS ON APPEAL On appeal, Complainant states that she does not deny that she did not apply for any of the vacancies at issue. Complainant avers that she did not apply for the positions because they were outside of Buffalo and they did not indicate that the Agency would consider domicile changes. Complainant maintains the domicile was changed for African American selectees following their selections although the positions specified duty stations. Finally, Complainant asserts that the Caucasian female selectee should not be used as a comparator because the position did not result in a domicile change. In response, the Agency asserts that there is no evidence that Complainant ever expressed interest in the positions and, therefore, it would be impossible for the manager to seek to exclude Complainant. The Agency adds that Complainant’s allegation regarding a secretive hiring process is not corroborated or supported by evidence. The Agency notes that even if Complainant were correct about unfair hiring practices, the alleged practices applied to all potential applicants equally regardless of race or sex. Finally, the Agency reiterates that some of the selectees were either female or Caucasian. 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 Chap. 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”). 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). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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. Tex. Dep't of Cmty. Affairs v. Burdine, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2020005215 4 In the non-selection context, Complainant may establish a prima facie case by showing that (1) she was a member of a protected class, (2) she applied for and was otherwise qualified for the position(s) at issue, (3) despite her qualifications, she was rejected, and (4) the Agency either selected someone from outside of her group or continued to seek applicants from persons with the same qualifications. McDonnell Douglas, at 802. Here, Complainant acknowledges on appeal that she did not apply for any of the positions at issue. Therefore, we agree that Complainant failed to establish a prima facie case of discrimination. Nevertheless, we find, assuming, arguendo, that Complainant established a prima facie case of unlawful discrimination based on race and sex, the Agency articulated legitimate, non- discriminatory reasons for not selecting Complainant for the positions in question. Specifically, management officials affirmed that Complainant did not apply or express interest in any of the positions at issue. Further, management denied discouraging Complainant from applying for the positions. The burden now shifts to Complainant to establish that the Agency's reasons for the non- selections are pretext for discrimination on her claimed bases. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affs., 450 U.S. at 259. In this case, there is no evidence of an unlawful factor in the Agency's hiring decisions. Although Complainant argues that some of the selectees were pre-selected, agencies may preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). Complainant did not present evidence to show that any preselection was due to a discriminatory animus. Moreover, while Complainant challenges the fact that the Agency changed the domiciles following selection or failed to properly advertise some of the positions, she failed to provide any evidence beyond her bare assertions that this occurred or that this was a result of discrimination based on her race or sex. We conclude that Complainant has not established that the Agency's reasons were a pretext for unlawful discrimination and 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 decision. 2020005215 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020005215 6 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 January 18, 2022 Date