Darren M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity CommissionJul 18, 2017
0120151974 (E.E.O.C. Jul. 18, 2017)

0120151974

07-18-2017

Darren M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Darren M.,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Southern Area),

Agency.

Appeal No. 0120151974

Hearing No. 560-2014-00132X

Agency No. 4G730004213

DECISION

The Commission accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 10, 2015 final order concerning his equal employment opportunity (EEO) complaint. He alleged 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor, in the Business Mail Unit, at the Agency's Oklahoma City Post Office facility in Oklahoma City, Oklahoma.

On June 4, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), disability (knees), and age (59) when, on April 23, 2013, he was informed that he was not selected for promotion to the position of Manager for the Business Mail Entry (BME) Unit, EAS-20.

The pertinent record reveals Complainant is an African-American and was age 59 at the time of the subject non-selection. He lists his physical disability as "90% disabled veteran." He also had two knee surgeries to correct a problem with both legs. He acknowledged that, as of April of 2013, he was not limited in any way with regard to any major bodily functions.

Complainant worked for the USPS for over twenty years. On March 5, 2013, he applied for the position of Manager of the Business Mail Entry Unit.

The selecting official was Caucasian. The selecting official testified that, because the selectee had previously expressed an interest in the position, he called him and others and advised them that the position was open and encouraged them to apply.

On April 2, 2013, Complainant was interviewed, along with three others. Of the four interviewed, two were Caucasian and two were Black.

The interview panel were all Caucasian. Following the interviews, scores were given to the candidates. Candidates were scored on six areas, including knowledge of regulations, revenue protection, customer compliance, managing, organizing, directing programs, communication and technical guidance. The person selected received the highest score. Complainant was scored a 10 and the selectee was scored a 12.

The person selected was Caucasian, younger, and had no known disability. He was an EAS 17, Supervisor of Customer Service.

The selecting official stated that he worked with Complainant for many years and he was not a strong leader. Complainant was also an EAS 17, Supervisor of the Business Mail Entry Unit. He stated that the successful candidate displayed a strong management style, which was what he averred he was looking for to run his operation.

Complainant averred that the selecting official did not want his face to be in the public eye. Complainant stated that "the position is political and in the public eye." His sense was that "[the selecting official] did not want [Complainant's] face to be that face." He stated that he had asked for the opportunity to act in the position, but never received a response.

Complainant also produced the affidavit of a retired employee who testified that he believed Complainant was more qualified than the person selected. Complainant's witness retired five years prior to the non-selection at issue. Complainant offered the affidavit of another employee who claimed to have overheard the selectee make the comment, "that job is [the complainant's]... not mine." It is undisputed, nonetheless, that the selectee applied for the position.

After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Finding the Agency's motion inadequate, the AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ provided Complainant with a statement of undisputed facts and the opportunity to respond. After Complainant did not dispute the statement of facts, the AJ subsequently issued a decision by summary judgment in favor of the Agency.

The AJ stated that he "found no evidence in the record that suggest that the selecting official evaluated the applicants by different criteria or any other evidence demonstrating an animus towards Complainant's race, color, age, and / or alleged disability as it relates to his non-selection." The AJ reasoned that "the fact remains that Complainant presented no evidence sufficient to rebut the Agency's reasons for not selecting him for the position."

The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.

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). 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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).

In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor, based on the undisputed record. Pre-selection alone does not establish discrimination. Significantly, the Agency's stated reason (that the selecting official perceived the selectee as stronger in terms of his management style and the selectee received the highest score) was not rebutted.

Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the entry of summary judgment was appropriate in this case. Complainant failed to prove that he was discriminated against by the Agency, as alleged.

Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

July 18, 2017

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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