Tanya C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Feb 26, 2019

2019000908 (E.E.O.C. Feb. 26, 2019)

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

Tanya C.,1
Complainant,

v.

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

Appeal No. 2019000908

Agency No. 1B-061-0028-18

DECISION

On October 1, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 26, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Labor Relations Specialist at the Agency’s
Connecticut Valley District Office in Providence, Rhode Island.

On May 12, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), sex (female), color (black),
age (over 40), and in reprisal for prior EEO activity when, on March 28, 2018, she was not
selected for the position of Manager, Distribution Operations on Tour 1.

After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative

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.
2019000908

2
Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision dated
April 26, 2016, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANAYLSIS AND FINDINGS

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 complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, 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 based on 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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

The Plant Manager (Caucasian, white male, year of birth 1960) was the selecting official for the
Manager, Distribution Operations position. The selecting official stated that a Review Board
consisting of three Agency officials reviewed the candidates’ application packages and provided
him a list of approved candidates, including Complainant, for consideration.

The selecting official interviewed all approved candidates. He explained that the questions he
asked the candidates were related to the duties that are performed by a Manager, Distribution
Operations. The selecting official also stated that he asked the candidates what the toughest
decision they recently made was, and that the question related to the requirements of the job
because decision-making in difficult situations is an essential role of a Manager, Distribution
Operations.
2019000908

3

Following the interview, the selecting official stated that he chose the selectee for the subject
position because he was deemed best qualified, and that the selection was predicated upon
interview responses. Moreover, the selecting official stated that Complainant’s race, color, sex,
age and prior protected activity were not factors in his decision to select the selectee for the
subject position. The selecting official noted that Complainant challenged what she perceived
were “behaviorial-based questions in the interview (such as being asked about the toughest
decision the interviewees ever made), and that such questions were not relevant operational
experience. The selecting official, however, indicated that decision-making in difficult situations
is an essential role of the subject position. The selecting official also rejected Complainant’s
assertion that her experience far exceeded that of the selectee, and that the selectee had no
operational experience. On this matter, the selecting official indicated that a “good manager can
manage,” and that a strong manager was capable of performing well in any position.

The record contains a copy of the PS Form 5957, Requirement-By-Applicant Matrix in which
the selecting official rated the candidates. The selectee received the highest overall score of 74
while Complainant received an overall score of 50.

The Human Resources (HR) Manager (Caucasian, white female, year of birth 1966) was the
concurring official concerning the subject position. The HR Manager stated that her role as a
concurring official “was a procedural one. It was to ensure that the process, as outlined by EL-
312, was followed. In this case it was. For example, I made sure a Review Board was formed,
and a Matrix was completed. I did not consider the merits of [selecting official’s] decision, nor
did I review the application of the Complainant.”2

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of
record does not establish that discrimination occurred.

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:

2 EL-312 is an abbreviation for Employment and Placement Handbook.
2019000908

4
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. The
2019000908

5
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

February 26, 2019
Date