Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 25, 2015

01-2013-3357-0500 (E.E.O.C. Sep. 25, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120133357

Agency No. 1C-191-0002-13

DECISION

On September 22, 2013, Complainant filed an appeal from the Agency’s August 23, 2013,
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 Supervisor,
Maintenance Operations, EAS-17, at the Philadelphia, Pennsylvania Processing & Distribution
Center. Complainant’s first level supervisor was S1 and his second level supervisor was S2.
The Maintenance Department had three sections: Mail Processing Equipment (MPE), Building
Equipment Maintenance (BEM), and Building Services (BS).

Complainant filed an EEO complaint dated January 4, 2013, alleging that the Agency
discriminated against him on the bases of race (African-American), national origin (Guyanese),
color (black), and in reprisal for prior protected EEO activity when:

1. On October 2, 2012 he was informed of his nonselection for a lateral position with
preferential days of rest (Sat/Sun); and
2. On February 8, 2013, he was informed he was not recommended for the position of
Manager, Maintenance Operations (MMO).

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

On appeal, Complainant claims that his supervisor was aware that he wanted to have Saturday
and Sundays as his off days. Complainant claims that in the past that this was all that was
required in order for days off to be assigned. Thus, Complainant argues that the job posting
for Vacancy 66056831 (the lateral position) should not have been posted. Complainant notes
that S2 stated he sent an electronic mail message prior to posting for the lateral position asking
supervisors if they were interested in moving into the position at issue. Complainant claimed
that he never saw that electronic mail message.1

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the

1 We note that Complainant submitted an additional brief postmarked November 21, 2013.
This brief was submitted beyond the applicable limitations period and will not be considered by
the Commission.
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Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. With regard to claim (1), the record reveals the Agency posted Vacancy 66056831 for
a Supervisor, Maintenance Operations (SMO), EAS-17, from July 10, 2012, to July 25, 2012.
The position had Saturdays and Sundays as nonscheduled days. Complainant applied for the
lateral SMO position. Complainant was interviewed for the position by S2. Selectee 1 was
chosen for the position.

The record contains a May 21, 2012 electronic mail message from S2 to all supervisors in
Philadelphia, including Complainant, advising them that all current supervisors had an
opportunity to move into four vacant positions and then the available positions would be
posted. The SMO position with Saturdays and Sundays off was one of the four positions
mentioned. Complainant never responded to the May 2012 electronic mail message, and the
two supervisors who did respond (one black and one white) were given their selected positions.
The remaining vacancies, including the SMO position, were posted in July 2012, and filled
through the competitive selection process.

Sixteen applicants applied for five vacant positions. A Review Committee was convened
consisting of Review Member 1, Review Member 2, and Review Member 3. The Committee
selected seven applicants to be interviewed, including Complainant. S2 was the Selecting
Official. During the interview, the Selecting Official asked all candidates about their
background and asked them 19 questions.

The Selecting Official stated that the SMO position at issue was responsible for the Mail
Processing Equipment. He noted the Supervisor in that position was responsible for
supervising Electronic Technicians and Mechanics in the maintenance, repair, and performance
of highly technical Mail Processing Equipment. The Selecting Official stated that the primary
area of responsibility for the SMO position at issue was in the letter automation, AFCS,
DIOSS, and DBCS’s. The Selecting Official noted the Selectee was a Maintenance Supervisor
from the Southeastern P&DC and he primarily worked in the letter automation area at the
Southeastern Plant for years. The Selecting Official noted the Selectee was responsible for
AFCS’s, DIOSS’s, and DBCS’s. The Selecting Official noted that the Selectee was also
detailed for six months prior to the posting into the Philadelphia P&DC as a Tour 3 Supervisor
responsible for the letter automation area.

In contrast, the Selecting Official noted that Complainant’s primary responsibility as a
Supervisor was in the Building Services area followed by the Building Equipment Maintenance
Area. The Selecting Official stated that Complainant was lacking in the knowledge and
experience in the letter automation Mail Processing Equipment area.
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The Selecting Official stated that the Selectee did very well during the interview. He stated
that the Selectee answered all 19 questions and was very knowledgeable. The Selecting
Official stated the Selectee knew the administrative side as well as the equipment side of
maintenance.

The Selecting Official noted Complainant did “ok” with the general administrative questions
but struggled with the specifics of the maintenance department. The Selecting Official also
stated that Complainant was lacking knowledge and experience on the automated Mail
Processing Equipment side of maintenance. The Selecting Official stated Complainant had no
answers to six of the 19 questions and gave poor answers to an additional two questions.

With regard to claim (2), the record reveals that the Agency posted Vacancy 68380782 for the
position of Maintenance, Manager Operations (MMO) from December 25, 2012, through
January 9, 2013. Twelve applicants, including Complainant, applied for the MMO position.
The Agency convened a Review Committee to review the applications and narrow down the
number of applicants to be interviewed. The Review Committee consisted of the Chairperson
of the Review Committee, Review Committee Member 2, and Review Committee Member 3.
The Review Committee recommended five applicants be interviewed by the Selecting Official,
and Complainant was not one of the five recommended.

The Chairperson of the Review Committee stated that the Committee used the qualifications
listed in the job posting to determine the best qualified candidates to be recommended to the
Selecting Official. The Chairperson stated that each committee member individually read each
application packet and completed an evaluation form. He noted that after all forms were
completed, they met and discussed their rankings of each applicant and recommended the top
five candidates, which did not include Complainant. The Chairperson noted that the top four
candidates had either performed MMO jobs in the past or were currently performing them.
The Chairperson stated Complainant was not one of the strongest candidates. The Chairperson
noted that Complainant received a few zeros on his rating sheet.

Review Committee Member 2 stated that the five candidates who were recommended were
selected by a consensus of the Review Committee.2

She stated that Complainant’s
qualifications were not as strong as the other applicants and stated he lacked experience as a
manager that the other applicants exhibited.
Review Committee Member 3 explained that the Committee looked at all the applicant’s
previous work history and how they answered the questions posed. He noted that the
applicants were rated and the top candidates were recommended to the Selecting Official.
Review Committee Member 3 characterized the pool of candidates as “tough,” in part because

2 The record reveals that initially five candidates were recommend; however, the Selecting
Official later stated that he only wanted four candidates referred.
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there were already several candidates who were performing duties as MMOs at the time of
their application and Complainant did not have much experience at that level.

The record contains the Applicant Matrix revealing that the Chairperson scored Complainant
with 8 points and the four candidates who were recommended by the Chairperson received
scores of between 22 and 28 points. Review Committee Member 2 scored Complainant with
21 points and the four recommended candidates scored between 26 and 29 points. Review
Committee Member 3 scored Complainant with 13 points and the four recommended
candidates scored between 24 and 30 points. The overall scoring showed that Complainant
received 42 points and the top five ranking candidates scored between 57 and 87 points.

In an attempt to show pretext, Complainant stated that the Selecting Official was looking to
hire “his own kind” and that the Selecting Official had “disdain for foreigners in general” and
he had a feeling that the Selecting Official did not consider him American. Complainant also
stated that his prior successful complaint against S1 was a factor because “no one likes to
lose.” Complainant also stated that Guyana is not highly respected and he doubts that any of
the parties listed can point out Guyana on a map. Complainant contends that based on their
lack of knowledge of the culture and tendencies of the Guyanese, it is difficult for them to
accept Complainant. Despite these assertions, we note Complainant provide no evidence to
support his contentions. Upon review, we find Complainant failed to show by a preponderance
of evidence that the Agency’s actions were a pretext for prohibited discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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
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Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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

September 25, 2015
Date