Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120114296 (E.E.O.C. Mar. 20, 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
(Eastern Area),
Agency.

Appeal No. 0120114296

Hearing No. 530-2010-00255X

Agency No. 4A-088-0104-09

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 12, 2011 final order 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was working in a detail
assignment as the Officer-in-Charge at the Post Office in Keansburg, New Jersey.
Complainant was previously the Postmaster at the Oceanport Post Office. Complainant applied
for the vacant Postmaster position at the Keansburg Post Office under Vacancy Announcement
No. 54782579. A three-person review board consisting of other Postmasters reviewed the
candidates’ applications. After scoring and ranking the candidates, the review board
recommended five candidates to the selecting official for interviews. Complainant was not
recommended for an interview. On or around August 17, 2009, Complainant was informed
that he had not been selected for the position.

On December 21, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of sex (male) and age (63) when he was not selected for
the Postmaster, EAS-20 position at the Keansburg Post Office. At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation
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(ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, but the AJ granted the Agency’s motion for summary
judgment and issued a decision on August 1, 2011.

In the decision, the AJ determined that Complainant had not established a prima facie case of
discrimination based on sex or age. Specifically, as to age, the AJ found that the record
reflected that four out of the five applicants recommended by the review board were over the
age of 40 and in the same protected group. Further, Complainant offered no evidence of
discrimination within the protected age group. As to sex discrimination, the AJ found that a
female applicant was also not recommended to the selecting official. The AJ determined that
Complainant had presented no other evidence raising an inference of discrimination. As a
result, the AJ found that Complainant failed to show that he was subjected to age and sex
discrimination. The Agency subsequently issued a final order adopting the AJ’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Chairperson of the review board should have
disqualified herself because she took issue with some the decisions he made as the Officer-in-
Charge when they previously worked together. Further, Complainant contends that one of the
recommended applicants is the wife of a district manager. Accordingly, Complainant requests
that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial.
Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255.
An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v.
Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the
potential to affect the outcome of the case.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that Complainant failed to
show that there was a genuine issue of material fact in this case, and even assuming all facts in
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his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the
Commission finds that the AJ's grant of summary judgment was appropriate.

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). He must generally 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission assumes the establishment of a prima facie case of sex and
age discrimination. The Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s non-selection. Specifically, the Chairperson of
the review board affirmed that Complainant had the minimum requirements for the position,
but there were others who were better qualified. ROI, at 104. The Chairperson added that the
review board scored each candidate’s application based on the nine knowledge, skills, and
abilities required for the position and recommended the top five rated candidates to the
selecting official. Id. at 33, 105. The Chairperson confirmed that the qualifications of the
recommended candidates were superior to those of Complainant as they fully responded to the
position’s essential requirements, including decision making, budget operations, planning and
scheduling work, and supervision. Id. at 106.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. 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. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
One way Complainant can establish pretext is by showing that his qualifications are “plainly
superior” to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
This is simply one method and is not the only way Complainant may establish pretext as to her
non-selection claim.

Complainant argued that he was better qualified than one of the recommended candidates as he
had more experience as a supervisor. The Commission notes that number of years of
experience, alone, is insufficient to establish that someone's qualifications are observably
superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011).
The Chairperson stated that the candidate had more valued experience at large facilities while
Complainant’s experience was in a small Post Office and mostly in one place. ROI, at 107.
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Further, that candidate’s application was clear and concise and her demonstrated abilities
showed measurable results. Id.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
Complainant failed to show that the review board’s recommendations or the selection process
was tainted by discriminatory animus. 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 animus. A
review of the considered candidates’ applications does not reveal that Complainant's
qualifications for the position were plainly superior to those who were recommended to the
selecting official. The Commission finds that Complainant failed to present any evidence
establishing that the Agency’s reasons for his non-selection were mere pretext to hide unlawful
discrimination. As a result, the Commission finds that Complainant was not discriminated
against as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final order, because the Administrative Judge’s grant of summary judgment was
appropriate and a preponderance of the record evidence does not establish that discrimination
occurred.

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:

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 (Nov. 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
0120114296

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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
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

March 20, 2013
Date