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

Equal Employment Opportunity Commission

Sep 12, 2013

0120111945 (E.E.O.C. Sep. 12, 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
(Southwest Area),
Agency.

Appeal No. 0120111945

Agency No. 4G-770-0326-10

DECISION

On February 2, 2011, Complainant filed an appeal from the Agency’s January 26, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Supervisor,
Distribution Operations at the Agency’s North Houston Processing and Distribution Center in
Texas. On September 8, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (West Indian), national origin (Guyanese), sex
(male), color (light skinned), and age (49) when:

1. since June 25, 2010, he was by-passed for promotions; and

2 he was not promoted to the position of Manager, Distribution Operations.

The Agency accepted the complaint and conducted an investigation of the accepted claims.1

1 The complaint filed also contained the follow allegation: “On August 3, 2010, management
used profanity and informed the Complainant he would never be promoted because he was not
At
the conclusion of the investigation, the Agency provided Complainant with a copy of the report
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of investigation and notice of his right to request a hearing before an 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). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where 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., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).

The Agency explains that Complainant was not selected for the Manager, Distribution
Operations position2

because the selectee received a higher score on a series of technical
questions, put to all applicants for the position, than Complainant received. Selectee’s score of
22 was the highest of all eight applicants. Complainant’s score of 12 was tied for second place
among the applicants. Report of Investigation, Exhibit 2. This is a legitimate,
nondiscriminatory reason for the Agency’s action.
Complainant does not dispute that the selectee received a higher score on the technical test,
rather Complainant argues that he is more qualified because he has significantly greater tenure
in the type of position in question than the selectee. In a non-selection case such as this, a
complainant may be able to establish pretext with a showing that his qualifications were plainly
superior to those of the selectee. See Burchfield v. Dep't of Treasury, EEOC Appeal Nos.
01970152, 01941579 (Apr. 6, 2000). Having more years of experience or having different
experience than a selectee does not necessarily make a complainant more qualified to meet the
needs of the organization. See Collins v. Dep't of Treasury, EEOC Request No. 05A41248
(Oct. 5, 2004). Without more, Complainant has failed to meet his burden of proving that the

a team player.” The Agency dismissed that allegation for failure to state a claim.
Complainant has not presented any argument as to why that dismissal should be reversed.
Accordingly, we will not discuss that claim further.

2 The Manager, Distribution Operations position is the only position at issue in this matter.
Although the text of Claim #1 suggests that Complainant was “by-passed” for other positions,
Complainant presented no evidence concerning any other positions.
0120111945

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Agency’s reason for its actions was a pretext designed to conceal discriminatory animus.
Accordingly, the Agency’s final decision 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:

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.

0120111945

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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

September 12, 2013
Date