Cher C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 9, 2019

0120182053 (E.E.O.C. Apr. 9, 2019)

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

Cher C.,1
Complainant,

v.

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

Appeal No. 0120182053

Agency No. 6X000000218

DECISION

On May 29, 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
May 11, 2018, 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.

ISSUES PRESENTED

Whether Complainant was discriminated against based on race (African-American), color (Black)
and age (57) when she was not selected for the position of Executive Administrative Assistant to
the Vice-President of Employee Resource Management.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Legal
Administrative Assistant at the Agency’s Capital Metro Law Office facility in Washington, DC.

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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On December 21, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), color (Black), and age (57)
when she was not selected for the position of Executive Administrative Assistant (EAA) to the
Vice-President of Employee Resource Management.

Complainant was temporarily employed as a Senior Legal Administrative Assistant at the Capital
Metro Law Office. She had been working in the EAA position while her supervisor, S1, was in
the process of selecting a Senior Legal Administrative Assistant. She stated that S1 indicated that
he was very satisfied with her work, and that when she asked him if there were areas that she could
improve, he “indicated no and stated that she did a very good job keeping him in line.” She stated
that she was interviewed for the permanent position on September 12, 2017, and another co-
worker, A1, was interviewed for the position on September 13, 2017.

On September 15, 2017, Complainant inquired into the status of a selection. S1 told her that a
third applicant, A2 (Caucasian), requested an opportunity to apply for the position. Complainant
stated that S1 asked Complainant to help train A2. Complainant responded by electing to return
to her regular position at Capital Metro. Complainant stated that S1 told her “that he knew her
work and would be in touch.” S1 did not inform Complainant that she was not selected for the
position. A2 was selected for the position.

Complainant stated that she was “eligible” for the position because she participated in the EAA
Program, had been a Legal Administrative Assistant for almost ten (10) years, and had prior
government experience for an additional ten (10) years. Complainant stated that she was more
qualified for the position than A2 because A2 had only been in the EAA detail for a few weeks,
she had not participated in the EAA program, she was an administrative assistant for approximately
five (5) years, and she had been a Postal Employee for less than ten (10) years.

S1 stated that he selected A2 because she provided a greater level of detail orientation with her
edits on reports and correspondence that needed his signature, and that A2 excelled over the other
individuals in coordinating his schedule, travel and expense reports. S1 also indicated that A2
proactively reached out to adjust conflicts without being asked, excelled in coordinating meetings
with his direct reports, and was proactive in editing and formatting presentations via PowerPoint.
S1 “felt that A2 was clearly the most qualified candidate for the position.”

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. 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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

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CONTENTIONS ON APPEAL

Complainant contends that she timely requested a hearing on March 19, 2018. She also indicated
that the tracking information that could support her contentions was in her car which was stolen
on January 23, 2018. Complainant also provided a signed copy of a hearing request to the
Commission, dated March 19, 2018, and a stolen car report from the local authorities indicating
that her car was stolen on January 23, 2018.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

At the outset, we note that Commission records indicate that Complainant did file a hearing request
with the Washington Field Office in March 2018; however, there is no persuasive evidence that
she informed the Agency of her request. Complainant was notified on the hearing request form
that she was required to provide a copy of her request to the Agency, and that the failure to do so
could result in the Agency issuing a final decision and the loss of her right to a hearing. We note
Complainant’s assertion that tracking information concerning her hearing request was in her car,
which was stolen in January 2018. Given that Complainant’s request was dated March 19, 2018,
we find it reasonable to conclude that evidence showing that she provided a copy of her March
request to the Agency would not have been lost in January 2018, two months earlier. Accordingly,
we find that the Agency’s issuance of a final decision was appropriate in this case. See Lopez v.
USPS, 0120091185 (Jun. 9, 2011) (affirming the dismissal of a hearing request where the agency
provided the complainant with notice that her right to a hearing would be forfeited if she did not
provide a copy of the hearing request to the agency).

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 Construction 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.
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t of Community 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 Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

Assuming, arguendo, Complainant established a prima facie case of discrimination based on race,
color and/or age, we find that the Agency presented legitimate, nondiscriminatory reasons for its
actions with regard to the selection of A2. S1 stated that A2 excelled over the other candidates in
coordinating his schedule, travel and expense reports. S1 also indicated that A2 proactively
reached out to adjust conflicts without being asked, excelled in coordinating meetings with his
direct reports, and was proactive in editing and formatting presentations via PowerPoint.
Complainant did not provide evidence that the Agency’s reasons were a pretext for discrimination.

Complainant has simply not established that the disparities in qualifications between her and A2
are of such weight and significance that no reasonable person, in the exercise of impartial
judgment, could have chosen A2 over her for the job. Ash v. Tyson Foods, Inc., 126 S. Ct. 1195,
1197-1198 (2006). Although Complainant correctly indicated that she had a greater length of
service when compared to A2, we have repeatedly held that mere years of service, or length of
service, does not necessarily make an individual more qualified to meet the needs of an
organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161689 (Sep.
21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). The
Commission will not substitute our judgment for the judgment of selecting officials familiar with
the present and future needs of their facility and therefore in a better position to judge the respective
merits of each candidate, unless other facts suggest that proscribed considerations entered into the
decision-making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561
(Aug. 6. 1998).

CONCLUSION

Based on a thorough review of the record and any contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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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. 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.
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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

April 9, 2019
Date