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

Equal Employment Opportunity Commission

Jun 5, 2013

0120120798 (E.E.O.C. Jun. 5, 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. 0120120798

Agency No. 1C-452-0008-11

DECISION

On November 26, 2011, Complainant filed an appeal from the Agency’s October 25, 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 (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 Maintenance
Mechanic, PS-07, at the Agency’s Cincinnati Network Distribution Center located in
Cincinnati, Ohio. The record reflects that the Agency's Maintenance Selection System (MSS)
provided that career maintenance craft employees (“incraft” employees) were given first
priority to fill vacancies in the maintenance craft. These incraft employees were given the
opportunity to fill a vacant position based on their standing on a Promotion Eligibility Register
(PER) kept by the Agency. Standing on the PER was determined by the results incraft
employees achieved in the Maintenance Selection System (MSS) process for the job family
related to a vacant position. The incraft selection process consisted of six steps: (1)
announcement; (2) application; (3) record review; (4), examination; (5) MSS structured
interview; and (6) results.

Complainant went through the MSS process for the subject position. Complainant took the test
for Maintenance Mechanic-MPE on December 7, 2010, and achieved a passing score of 79.70.
Complainant was then interviewed by a panel of three members: a Human Resources Specialist
(Panel Member 1); a Supervisor, Maintenance Operations (Panel Member 2); and the
Manager, Maintenance Operations/MSS Coordinator (Panel Member 3). The panel rated
0120120798

2
candidates on four areas: Information Usage and Safe Work Habits; Analytical Problem
Solving; Organizational Citizenship; and Electronics Knowledge. The possible scores ranged
from 1 (ineffective); 2 (below average); 3 (average); 4 (above average); and 5 (extremely
effective). Complainant was rated 1 on Electronics Knowledge, 2 on Analytical Problem
Solving, and 3 in all other areas. His overall score was 2.6. After his interview on December
22, 2010, Complainant was declared ineligible for placement on the PER.

Complainant filed an EEO complaint dated May 5, 2011, alleging that the Agency
discriminated against him on the bases of race (African/Native American) and color (black)
when: on December 22, 2010, Complainant was not selected for the MPE Level 9 position.

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). 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 there are errors and omissions in Panel Member 3’s statements
in regard to their contact with one another. Complainant alleges that Panel Member 3 failed to
state that both Comparative 2 and Comparative 3 were chosen to be sent to Oklahoma for
additional training and were placed in Pre-IES (Industrial Electrical Service) with Complainant
prior to Comparative 2 going. Complainant states he received the highest score on Pre-IES yet
was never offered a chance to go for additional training.

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. (November 9, 1999) (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
0120120798

3
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
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, Complainant stated that he participated in the interview and believed he
answered over 90% of the questions “well, accurate, and without impedence [sic] from MMO
[Panel Member 3].” Complainant stated that during the interview, Panel Member 3 “sensed”
his electronics knowledge was not one of his strongest skills sets, and he chose to “grill”
Complainant on electronics questions, including one situation in which Panel Member 3 cut
Complainant off in mid-answer and indicated that the panel had heard enough. Complainant
noted he had passed basic electronics in an Agency course and test. He stated that he believed
he would receive more training upon accepting an MPE job.

Panel Member 3 explained that the interview questions came from a booklet that the system
puts out and he noted that all interviewees were asked the same questions. He explained that
after each candidate’s interview all three panel members agreed on a rating for that candidate.
He stated the rating sheet was kept and was entered into the Oasis system. Panel Member 3
noted the system did all the scoring. Panel Member 3 explained the ranking was done by
combining the 955 and 971 scores and candidates were then deemed eligible or ineligible.

Panel Member 3 noted that Complainant met the qualifications on all other competencies, but
he was completely lost regarding electronics. Panel Member 3 stated Complainant could not
answer any of the standard questions. Panel Member 3 found that for as long as Complainant
had been working at the Agency, he should have been able to answer the questions. Panel
Member 3 noted he asked Complainant about different components in electronics hoping he
would know something about some of the components, but Complainant could not describe
what the components were which showed he was not familiar with them. Panel Member 3
explained that an MPE was one step below an Electronics Technician and stated knowledge of
electronics was required to do the job. Panel Member 3 stated there was also a safety factor
involved. Panel Member 3 acknowledged cutting Complainant off after three or four wrong
answers and stated he figured there was no sense in going further with the interview.
Handwritten comments at the bottom of Complainant’s Interview Panel Consensus Final Rating
included: “Lacks basic knowledge and experience with electronics. Knowledge was not
demonstrated during the interview process concerning electronics.”
0120120798

4
With regard to the comparatives identified, the record contains the 955 results for Comparative
1 dated August 7, 2009, showing that Comparative 1 scored an 82.00 on the MPE
examination. Panel Member 3 stated that Comparative 1 did his homework and could explain
electronic details and components.

The record contains the 955 results for Comparative 3 dated March 20, 2010, indicating
Comparative 3 scored an 86.45 on the MPE examination. The record reveals that
Comparative 1 scored a 3.2 on the interview. The record contains Comparative 3’s interview
form dated April 6, 2010, showing Comparative 3 scored a 3 on all factors except Electronics
Knowledge in which he scored a 1. Comparative 3’s overall score was 2.6. Notes at the
bottom of the form included: “employee demonstrated little knowledge or skill measuring
voltage, current, resistance. He has little experience and skill testing circuit output. He has
little experience and skill working with conductors and or semi-conductors.”

With regard to Comparative 2, an MSS Incraft Rating summary printed on August 1, 2008,
indicated that he received a rating of 62. A handwritten annotation on the scoring document
indicated that Comparative 2 was rated under the “old EMSS system” when he was determined
eligible on or before August 1, 2008.

Complainant also identified Comparative 4 (black, African-American), Custodian, who he
stated attended an electronics course and passed the examination and interview. The record
reveals that Comparative 4 scored an 81.36 on the 955 examination. She was interviewed on
December 15, 2010, and received an overall score of 2.4. A handwritten notation indicated
that Comparative 4 was “Lacking Experience and Knowledge.” Comparative 4 was deemed
ineligible. Panel Member 3 stated that Comparative 4 was not qualified because of her lack of
electronics knowledge.

Upon review, we find the record in the present case was fully developed. We find the Agency
articulated legitimate, non-discriminatory reasons for its actions, which Complainant failed to
show were a pretext for discrimination. Complainant has not claimed or shown that the system
used by the Agency to place employees on PER was discriminatory. Complainant has not
claimed in the complaint that he was discriminatorily denied training. Complainant has not
shown that his MPE examination score or interview score were discriminatory.

CONCLUSION

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

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:
0120120798

5

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
0120120798

6
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

June 5, 2013
Date