U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fernando D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120181446
Agency No. IK-221-0026-17
DECISION
On March 23, 2018, 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
February 20, 2018 final decision concerning his 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. 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 Mail Processing Clerk
at the Agency’s Northern Virginia Processing and Distribution Center in Merrifield, Virginia. On
September 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Hispanic)2, national origin (Panamanian), sex (male), color
(Black), and in reprisal for prior protected EEO activity under when, on February 2, 2017, he
became aware that he was not selected for a higher-level supervisory 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.
2 The Commission considers the term “Hispanic” to denote a national origin rather than a race.
Nonetheless, claims of race discrimination are analyzed under the same framework as claims of
national origin discrimination.
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Complainant alleged that he was not selected for the position of Supervisor Automation on
February 2, 2017. Complainant claimed that there was no vacancy announcement for the position,
that the position was full-time, but he was unable to apply for it because it was never posted.
Complainant claimed that the Selectee was the only employee interviewed for the position and
was selected to fill the position. Complainant believed that he was better qualified for the position
than the Selectee.
The Senior Manager of Distribution Operations (SMDO) averred that the Selectee was chosen to
be the Supervisor of Distribution Operations. SMDO said that the Selectee submitted an
application to the job posting for this position and Complainant did not. The Agency provided a
copy of Internal Publication of Job Posting 1008765 advertising the position of Supervisor of
Distribution Operations in Merrifield, Virginia. The position was open from January 31, 2017 to
February 15, 2017. In addition to the Selectee, 22 other employees applied for the position.
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).
In the decision, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, SMDO explained that Complainant was
not selected for the position because he did not apply. Further, SMDO stated that the Selectee was
the best applicant among those who applied. The Agency concluded that Complainant failed to
show that management’s reasons for its actions were pretextual. As a result, the Agency found
that Complainant had not been subjected to discrimination or reprisal as alleged. The instant
appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Commission should carefully consider the record and
conclude that the Selectee was not qualified to be paid at a higher level or to be placed in a higher-
level position. Further, Complainant argues that management officials created false documents
knowing they contained false, fictitious and fraudulent information. Accordingly, Complainant
requests that the Commission reverse the final decision.
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).
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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”).
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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. Corp. 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 804 n.14. 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, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the Agency has articulated a legitimate, non-discriminatory reason for its actions.
Specifically, it did not hire Complainant because Complainant did not apply for the position. ROI,
at 61. Further, the Agency presented evidence that contradicts Complainant’s argument that the
position was not posted. The Agency showed that the position was advertised from January 1,
2017 to February 15, 2017, and that the position was open to all career employees assigned within
the District. Id. at 72-74. Furthermore, the record reveals that management collected applications
from 23 candidates as a result. Id. at 75-79. Ultimately, SMDO selected the Selectee following
an interview as he determined she was the best qualified candidate. Id. at 61. There is no record
evidence demonstrating that Complainant applied for the position. As a result, Complainant was
not considered or interviewed for the position.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination.
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Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do
this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Complainant contends that the Selectee was not qualified for the position and essentially was
preselected. Complainant, however, has presented no evidence rebutting SMDO’s explanation
that Complainant was not selected for the position because he did not apply. Further, Complainant
has not demonstrated that the Agency used a secretive application process to promote the Selectee
to the vacancy or that the Agency otherwise discouraged Complainant from applying. See
Complainant v. Dep’t of Health & Human Servs., EEOC Appeal No. 0120100011 (Nov. 27, 2013);
Martin v. Tenn. Valley Auth., EEOC Appeal No. 0120111405 (Oct. 26, 2012).
At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result,
the Commission finds that Complainant has not established that he was subjected to discrimination
or reprisal as alleged.
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.
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
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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
June 28, 2019
Date
