Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120114241 (E.E.O.C. Feb. 27, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120114241

Agency No. 4H-370-0121-10

DECISION

On September 12, 2011, Complainant filed an appeal from the Agency’s August 5, 2011 final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, 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 General Expeditor
at an Agency work facility in Memphis, Tennessee. On September 3, 2010, Complainant filed
an EEO complaint wherein he claimed that the Agency discriminated against him on the bases
of his sex (male) and in reprisal for his prior protected EEO activity when:

1. On June 23, 2010, management canceled the vacancy announcement for the position
of Labor Relations Specialist in Memphis, Tennessee; and
2. On July 7, 2010, the vacancy announcement for the position of Labor Relations
Specialist in Nashville, Tennessee was only open to current EAS employees.

The Agency initially dismissed the instant complaint on the grounds of failure to state a claim.
In v. United States Postal Service, EEOC Appeal No. 0120110523
(March 16, 2011), the Commission reversed the dismissal and remanded the complaint for
further processing. 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
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EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its decision, with regard to claim (1), the Agency noted that Complainant applied for and
was interviewed for the Labor Relations Specialist position in Memphis, but on June 23, 2010,
the vacancy announcement was canceled even though a female candidate had been tentatively
selected for the position. With respect to claim (2), the vacancy announcement was posted
from July 6-21, 2010, for a Labor Relations Specialist position in Nashville and all “district-
wide” EAS employees were eligible to apply. This vacancy announcement was also canceled.
Assuming arguendo that Complainant established a prima facie case of sex and reprisal
discrimination, the Agency explained that the cancellation of the Memphis position was based
on a determination that the position would be better served in Nashville where a consolidation
of duties was occurring. The Agency further explained that eligibility for the Nashville
position was limited to EAS employees because of a potential major restructuring that would
displace many EAS employees, and it was hoped that if a displaced EAS employee assumed
the position, the position would be more likely to survive the restructuring. Ultimately, the
Nashville vacancy was canceled when all EAS vacancy announcements were frozen at the
national level. The Agency rejected Complainant’s argument that a female employee had been
preselected and that the posting was limited to EAS employees so that he would not be eligible.
Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant set forth a prima facie case of sex and reprisal
discrimination. The Agency explained that the posting for the Labor Relations Specialist
position in Memphis was canceled and subsequently announced in Nashville based on a
determination that additional staff was needed in Nashville. The Agency further explained that
the posting for the Labor Relations Specialist position in Nashville was limited to only
“district-wide” EAS employees so that the position would be more likely to be retained after
possible major management restructuring. These are legitimate, nondiscriminatory reasons for
the actions at issue. Complainant’s arguments that: (1) females were favored by the selecting
official for the Memphis position; and (2) that eligibility for the Nashville position was limited
to EAS employees for the purpose of excluding him from consideration are not supported by
evidence sufficient to establish that the Agency’s explanations are unworthy of belief or a
pretext for unlawful discrimination. Accordingly, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

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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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
0120114241

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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

February 27, 2013
Date