[Redacted], Marquis K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 14, 2020Appeal No. 2020001716 (E.E.O.C. Jul. 14, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marquis K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020001716 Hearing No. 490-2019-00145X Agency No. 1C-371-0001-19 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s December 20, 2019 appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 22, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Tractor Trailer Operator (TTO), P-8, at the Agency’s Transportation Memphis P&DC facility in Memphis, Tennessee. On January 8, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on age (49) and disability (migraines and stroke) when, on approximately October 5, 2018, Complainant became aware of his non-selection for the 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 2020001716 Supervisor Transportation Operation (“Supervisor TO”) position, EAS Level 17, job posting number 10217091. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision by summary judgment in favor of the Agency on December 9, 2019. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant does not submit any statements or briefs. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigation file or other evidence of record, that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 3 2020001716 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant applied for the Supervisor TO position through the Agency’s eCareer System on August 31, 2018, and he was interviewed on September 21, 2018. Complainant testified that he was not selected for the Supervisor TO position because of his age and disability. He stated that he had more experience than the selectee (8 years younger than Complainant, no known disability), including serving periodically as an acting supervisor (204B), and he had trained the selectee. Complainant stated that he was diagnosed with a stroke and migraines in June 2018 and that it is an ongoing condition being treated with medication. He stated he had no work restrictions and could perform all the essential function of his position. He said that his supervisor was aware of his disability as he provided him with medical documentation in 2018 to support his request for several weeks of light duty, which was granted. Based on this evidence, we presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. Complainant’s supervisor (“S1”) (61) was also the selecting official for the Supervisor TO position. He confirmed that Complainant had no medical work restriction and said he never had any reason to question Complainant’s ability to perform as a tractor trailer operator. Five individuals applied and were interviewed for the position, including Complainant. S1 testified that the most important consideration in assessing the relative qualifications of the candidates was the written application itself. S1 stated that Complainant did not complete the critical “knowledge, skill, and ability” (“KSAs”) portion of the application. He asserted that Complainant only responded to four of the eight KSAs and even those he responded to were incomplete. Despite his incomplete application, S1 granted Complainant an interview, but stated that pursuant to Agency policy Complainant’s poor application should have eliminated him from further consideration. S1 testified that Complainant’s interview was satisfactory, but unremarkable. S1 submitted the selectee’s application to his supervisor (“S2”) (50), for his approval. S2 approved of S1’s selection, and confirmed that Complainant failed to fill out his KSAs. 4 2020001716 Based on this evidence, developed during the investigation of the complaint, the AJ concluded that the responsible Agency officials articulated legitimate, non-discriminatory reasons for the selection. The AJ found that even a “cursory review” of Complainant’s listed accomplishments on his application reflected a lack of detail when compared to the manner of the accomplishments as identified by the selectee. The investigative record contains copies of the applications submitted by Complainant and the selectee which confirms the AJ’s observation and the testimony of S1 concerning the relative completeness of the applications concerning KSAs/accomplishments. We conclude that the evidence of record fully supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s age and/or disability. While Complainant asserts he was more experienced than the selectee and should have been chosen, he has not established that any alleged disparities in qualifications between him and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). CONCLUSION Accordingly, we AFFIRM the Agency's final order implementing the AJ's decision by summary judgment concluding no discrimination was established. 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. 5 2020001716 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. 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 July 14, 2020 Date Copy with citationCopy as parenthetical citation