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

Equal Employment Opportunity Commission

Mar 7, 2013

0120113804 (E.E.O.C. Mar. 7, 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. 0120113804

Hearing No. 450-2010-00234X

Agency No. 4G-752-0002-10

DECISION

On August 4, 2011, Complainant filed an appeal from the Agency’s June 29, 2011, notice of
final action 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. For the following reasons, the
Commission AFFIRMS the Agency’s notice of final action.

BACKGROUND

Complainant worked as a Supervisor of Customer Services, EAS-17, at the Agency’s
Brookhollow Station in Dallas, Texas. At the time of the events giving rise to this complaint,
Complainant was on a detail serving as the Acting Manager for the Inwood Station in Dallas,
Texas. On August 4, 2009, the Agency announced the position of Manager of Customer
Services, EAS-20, at the Inwood Station. Fourteen candidates, including Complainant, applied
for the position. A three-person panel rated the candidates’ applications and recommended
seven candidates to the Selecting Official. Complainant was not one of the seven final
candidates recommended. The Selectee was chosen in September 2009.

Complainant filed an EEO complaint dated December 22, 2009, as amended, alleging that the
Agency discriminated against him on the bases of race (African-American), sex (male), and
age (51) when:

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1. On September 10, 2009, Complainant became aware of his non-selection for the
position of Manager, Customer Services, EAS-20, in Inwood Station.

Complainant alleged discrimination based on retaliation (for the present case) when:

2. On February 5, 2010, Complainant was denied a pay increase.

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). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on June 13, 2011.

In his decision, the AJ ruled on Complainant’s two outstanding motions, a motion to strike and
a motion to compel. The AJ noted Complainant received the Agency’s response to his
discovery request on September 15, 2010. The AJ noted that according to the
Acknowledgment Order he previously issued, motions to compel had to be filed within ten
calendar days of receiving a deficient discovery response. Thus, the AJ noted the motion to
compel was due on September 25, 2010. The AJ noted Complainant filed a motion to strike
on September 23, 2010, noting the ten-day rule, and implying he would be filing a motion to
compel. The AJ explained the motion to strike was served via facsimile. The AJ found
service by facsimile was ineffective as it violated the HECAPS General Order which required
all pleadings to be filed in pdf format. Thus, the AJ found the motion to strike was not
properly filed.

In addition, the AJ noted that on September 27, 2010, Complainant attempted to file a motion
to compel. The AJ found, assuming service of the motion to compel had been effective on that
date, it would have been untimely since the due date was September 25, 2010. However, the
AJ noted that service of the motion itself was ineffective on September 27, 2010, as it was sent
via certified mail, return receipt requested. The AJ stated that he received the motion by mail
on October 5, 2010; however, it was in paper format rather than in pdf format on a CD Rom
disc, which was the proper method for service by mail under the HECAPS Order. The AJ
noted on October 5, 2010, Complainant served by electronic mail a second copy of the motion
to compel. The AJ found the motion to compel was not properly filed until October 5, 2010,
and thus, he denied the motion as untimely.

With regard to his non-selection, the AJ noted the Selecting Official explained she did not
select Complainant for the position at issue due to his job performance. The AJ noted that the
Selecting Official stated she was familiar with Complainant’s job performance based on her
personal observations. The AJ found the documentary record and Complainant’s performance
appraisal show he had performance issues during his midterm evaluation in May 2009, and that
the problems had not been corrected as of the date of his final evaluation in November 2009.
Thus, the AJ found sufficient evidence to support the Selecting Official’s conclusion that as of
September 2009, Complainant’s performance did not merit a promotion from a supervisor to a
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manager. The AJ noted that Complainant presented no documentary evidence that he was
better qualified than the Selectee.

Additionally, the AJ noted that the fact that the review panel did not place Complainant on the
best qualified list does not raise a material question of pretext. The AJ found the action of the
review panel was consistent with the evidence concerning Complainant’s performance. The AJ
noted that while the Selecting Official did note that the non-recommendation of the review
panel was further reason not to select Complainant, he found the Selecting Official’s personal
knowledge of Complainant’s performance was an independent basis for Complainant’s non-
selection.

With regard to the denial of a merit pay award, the AJ noted the pay award was dictated by the
2009 performance appraisal. The AJ noted Complainant was rated as a non-contributor on
November 12, 2009, five weeks after Complainant contacted an EEO Counselor. The AJ
found there was no indication that the rating official (Person A) had any knowledge of
Complainant’s informal EEO complaint over the non-selection. The AJ noted even if Person
A was aware of the informal EEO complaint, the 2009 rating was entirely consistent with the
May mid-term appraisal, thus dispelling any inference of retaliation based on proximity in
time. Moreover, the AJ noted Complainant had not even contended that Person A’s rating of
“non-contributor” was unjustified.

The Agency subsequently issued a notice of final action on June 29, 2011. The Agency’s
notice of final action fully implemented the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

On appeal, Complainant claims the AJ failed to rule on his September 27, 2010 motion to
compel. Complainant states that the motion to compel was served on the AJ by certified mail,
return receipt, on October 4, 2010. Complainant notes on October 5, 2010, the motion was
sent to the AJ via electronic mail. Complainant claims the AJ never ruled on his motion to
compel. Complainant also argues that he never received notice from the AJ that he intended to
rule on the Agency’s motion for summary judgment and thus, was deprived of the notice and
opportunity to fully respond to the motion. Additionally, Complainant claims that the AJ did
not rule on his motion to strike the Agency’s motion for summary judgment.

In response to Complainant’s appeal, the Agency notes that the AJ properly ruled on
Complainant’s motion to strike and motion to compel. Additionally, the Agency argues that
the AJ had no obligation to notify Complainant of his intent to rule on the Agency's motion for
summary judgment. The Agency also states that it provided all the relevant information and
documentation that was in its possession and that was in existence, regarding Complainant’s
non-selection and for his failure to receive a pay raise. Moreover, the Agency claims the AJ
properly granted summary judgment in the Agency’s favor.

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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”).

At the outset, we address Complainant’s contention that the AJ failed to rule on his motion to
strike and motion to compel. Despite Complainant’s contention to the contrary, we note that
the AJ did rule on both motions in his June 13, 2011 decision. Upon review, we find the AJ
properly denied Complainant’s motion to strike served via facsimile for ineffective service.
Additionally, the AJ properly found that Complainant’s September 27, 2010 motion to compel
sent via certified mail was not properly filed. With regard to the October 5, 2010 motion to
compel, we find the AJ properly determined that this motion was untimely filed.

Next, we address Complainant’s contention that the AJ failed to give him notice that he was
going to rule on the Agency’s motion for summary judgment. The record reveals that the AJ’s
Acknowledgment Order informed the parties that:

Pursuant to 29 C.F.R. §1614.109(g)(1), a party may file a motion for summary
judgment if that party believes that some or all material facts are not in genuine dispute
and there is no genuine issue as to credibility. A motion for summary judgment must
include a statement of the undisputed material facts. Unless otherwise ordered by the
Administrative Judge, a motion for summary judgment must be filed not later than
fifteen (15) days after the close of discovery. The opposing party will then have fifteen
(15) days from receipt of the motion in which to file a response. The moving party will
then have five (5) days from receipt of the response to file a reply.

The record reveals that the Agency properly served Complainant with its motion for summary
judgment on September 13, 2010. Instead of filing a response on the merits of the motion,
Complainant instead filed a motion to strike the Agency’s motion for summary judgment on
September 23, 2010, and attempted to file a motion to compel on September 27, 2010 (and
October 5, 2010). We note that 29 C.F.R. §1614.109(g) does not require that an AJ to give
notice to a party when he is going to rule on the other party’s motion for summary judgment.
Rather, the Commission’s regulation only requires an AJ to give notice to the parties of his
intent to enter a decision without a hearing when the AJ on his own initiative decides that some
or all of the facts are not in dispute. Thus, there was no requirement in the present case, for
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the AJ to notify Complainant that he was going to rule on the Agency’s motion for summary
judgment.

In the present case, the Commission determines that there are no genuine issues of material
fact or any credibility issues which required a hearing. Moreover, we find the record in the
present case was fully developed. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.

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 Construction Co. 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 actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). 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, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

In the present case, with regard to issue (1), the Agency presented a legitimate, non-
discriminatory reason for not selecting Complainant - due to his performance problems he was
not the best qualified candidate for the promotion. The record confirms that Complainant had
performance deficiencies at the time of his mid-term appraisal which continued through his end
of year evaluation. Complainant has failed to show that his qualifications were plainly superior
to those of the Selectee. In the present case, we find Complainant failed to show that the
Agency’s actions were a pretext for prohibited discrimination.

With regard to issue (2), the Agency presented a legitimate, non-discriminatory reason for not
giving Complainant a pay increase, his overall non-contributor rating of “3” on his Fiscal Year
2009 rating. We note the record indicates that under the PES in order to receive a PFP
adjustment EAS Employees must receive a performance rating warranting an adjustment. We
note that Complainant does not claim that the numerical rating he received on his evaluation
merited a pay increase. Moreover, he does not identify any similarly situated individuals who
were allegedly treated differently. Additionally, we note that Complainant does not contest
any part of the actual rating he was given for Fiscal Year 2009. We find Complainant failed to
show by a preponderance of evidence that the Agency’s actions were a pretext for retaliation.

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CONCLUSION

Accordingly, the Agency’s notice of final action 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.

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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

March 7, 2013
Date