U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Justin P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120181900
Hearing No. 490-2017-00146X
Agency No. 4C-370-0009-17
DECISION
On May 11, 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
April 6, 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. and Title II of the Genetic Information
Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
Whether the Agency correctly issued a decision finding that Complainant failed to establish that
the Agency discriminated against his on the bases of sex, religion, color, genetic information, and
age when, (1) on January 4, 2017, Complainant was not selected for the Information System
Manager position, and (2) on October 21, 2016, Complainant believed he was denied a detail.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Maintenance
Manager, EAS-23, at the Agency’s Processing and Distribution Center in Jacksonville, Florida.
In May 2016, Complainant learned that the Tennessee District Information Systems Manger was
going to retire in June 2016. As such, Complainant asked the Tennessee District Manager
(Manager) to be detailed to the position. However, Complainant was not considered for the detail.
He believed that he was not permitted to obtain experience from the detail. The Selectee and the
Coworker also expressed interest in being detailed to the position in question. The Manager noted
that these individuals were located in the Tennessee District and there was no need to consider
others for the detail from outside of the District.
Subsequently, Complainant applied for the vacant Tennessee District Information Systems
Manager position when it was posted. Complainant was interviewed for the position along with
four other candidates. The Manager and Information Technology Program Manager (Program
Manager) conducted the interviews. The Manager chose the Selectee for the position in question
on October 28, 2016.
On November 10, 2016, Complainant contacted an EEO Counselor. When the matter was not
resolved informally, on March 4, 2017, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of sex (male), religion (Jewish), color (Caucasian),
genetic information (Vitiligo), and age (51) when:
1. On October 28, 2016, Complainant was not selected for the Information System
Manager position;
2. In August/September 2016, Complainant believed he was denied a detail; and
3. From 2013 to May 2016, Complainant was denied details and not selected for
positions for which he applied.
The Agency dismissed claim (3) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact. The Agency noted that the discrete events alleged as claim (3) occurred well
beyond the 45-day time limit. As such, the Agency dismissed claim (3) and accepted claims (1)
and (2) for investigation.
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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
Agency dismissed claim (2) on procedural grounds.
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In alternative, the Agency also addressed whether Complainant established that he was subjected
to discrimination with respect to both claims (1) and (2). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant appealed the Agency decision, asserting that the Agency’s dismissal of claim (2) was
not appropriate. Further, Complainant argued that the Agency erred in dismissing claim (3). He
argued that claims (1), (2), and (3), taken as a whole, created a hostile work environment.
Complainant asserted that the Agency failed to identify his claim of hostile work environment and
fragmented his claim. Further, he claimed that he has been kept from obtaining experience that
would have helped his opportunity to be selected for the position when it was announced. In
addition, the Selectee who had been given the detail was subsequently awarded the position.
Complainant argued that he was better qualified for the position alleged in claim (1). However,
the Selectee gained experience during the detail to justify her selection for the position.
Accordingly, Complainant contended that he has been denied consideration for details which
provided experience for the Selectee who was chosen for the position in question in violation of
the law. In sum, he asked that the Commission find in his favor.
The Agency responded in opposition to Complainant’s appeal. The Agency argued that the
dismissal of claim (3) was appropriate as Complainant alleged discrete acts outside of the 45-day
time frame. Accordingly, the Agency asked that the Commission affirm its dismissal. As to claims
(1) and (2), the Agency indicated that it provided legitimate, nondiscriminatory reasons for its
actions. Finally, the Agency argued that Complainant did not show that the Agency’s reasons
were pretext for discrimination. In sum, the Agency asked that the Commission affirm its decision
finding no discrimination.
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”).
Partial Dismissal
In claim (3), Complainant alleged that from 2013 to May 2016, he was denied details and not
selected for positions for which he applied. The Agency dismissed the claim pursuant to 29 C.F.R.
§ 1614.107(a)(2) for untimely EEO Counselor contact.
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EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105,
§1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with
§1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if complainant can establish that complainant was not aware of the time limit,
that complainant did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence complainant was prevented by
circumstances beyond his control from contacting the EEO Counselor within the time limit, or for
other reasons considered sufficient by the agency or Commission. The record indicates that
Complainant contacted the EEO Counselor on November 10, 2016. The events alleged in claim
(3) occurred from 2013 to May 2016, well beyond the 45-day time limit. As such, we affirm the
Agency’s decision to dismiss claim (3) as discrete acts.
We note that Complainant asserted that the events alleged in claim (3) were supporting background
evidence to his claim of a hostile work environment. We note that a fair reading of Complainant’s
complaint alleges a claim of disparate treatment regarding the events which culminated in the
Agency’s decision not to select him for the position listed in claim (1). As such, we are not
persuaded by Complainant’s assertion that he alleged a claim of harassment.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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.
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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
Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. With respect to claim (2), the Manager indicated that Complainant
contacted him inquiring about a detail opportunity for the position vacated by the retirement of the
Tennessee District Information Systems Manager. The Manager informed Complainant that he
would be considered for the detail. However, he did not promise the detail to Complainant. The
Manager allowed the Selectee and the Coworker to be detailed to the vacant position because they
expressed interest and were in the same duty station. As such, there was no additional cost to the
Agency for housing or per diem. Further, the Manager stated that there was no need to consider
employees from outside of the District for a temporary assignment.
As for claim (1), the Manager and the Program Manager interviewed the five candidates for the
position including Complainant and the Selectee. They stated that the candidates were interviewed
over the phone and were asked the same 14 questions. The Manager indicated that he chose the
Selectee because she went above and beyond the other candidates in preparation for her interview.
He noted that she had refreshed her IT management skills through on-line courses. Selectee also
had a track record for developing teams and a reputation as a strong manager with excellent
interpersonal skills. The Manager found that the Selectee’s responses were more “big picture” and
team oriented. As such, the Manager chose the Selectee for the position at issue.
Finding that the Agency has met articulated legitimate, nondiscriminatory reasons for its actions,
we turn to Complainant to show that the Agency’s reasons were pretext for discrimination. As for
claim (2), Complainant asserted that the alleged denial of a detail was a pattern of denying him
opportunities to expand his experience in order to be competitive for positions such as the one
alleged in claim (1). However, we find that Complainant does not challenge the Agency’s
assertion that they had employees within the District who could fill the position temporarily
without incurring additional costs. Further, Complainant’s claims are not substantiated and are
speculative.
Finally, we turn to claim (1). Where, as here, the alleged discriminatory action is non-selection,
pretext may be found where the complainant’s qualifications are demonstrably superior to those
of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency
may choose among qualified candidates based on its discretion, provided that the decision is not
based upon unlawful criteria. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treas., EEOC
Request No. 05940906 (Jan. 16, 1997). It is not the function of this Commission to substitute its
judgment for that of management officials who are familiar with the needs of their facility, and
who are in a better position to make decisions, unless other facts suggest that proscribed
considerations of bias entered the decision-making process.
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See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647
F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005)
(personnel decisions and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation). Upon review, we find that Complainant has not shown that the Agency’s
reasons for selecting the Selectee were pretext for discrimination. Accordingly, we determine that
Complainant has not established that he was subjected to discrimination based on his sex, color,
religion, age, and genetic information.
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 finding that Complainant
did not establish that he was discriminated against.
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.
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.
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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 26, 2019
Date
