Emery S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120181810 (E.E.O.C. Sep. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emery S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120181810

Agency No. 1F927010917

DECISION

On May 3, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 17, 2018, 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 finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Parcel Post
Distribution Machine Clerk at the Agency’s Anaheim Processing & Distribution Center facility in
Anaheim, California. He applied for several positions that would result in a promotion.

On November 1, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of race (Hispanic) when, on or about July 28, 2017, Job ID
# 71789282 was not awarded to him after the initial successful bidder was disqualified from the
bid. Complainant contends that after the successful bidder was disqualified, the position should
have been reposted so that he could use his seniority to secure it rather than the job being awarded
to another bidder who had less seniority and was Asian.

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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Complainant asserted that his race had to be a factor in the decision because there was “no other
explanation for management's refusal to apply their own rule in a fair and equitable manner.”

After 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 Equal Employment Opportunity
Commission 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.

In reaching its decision, the Agency considered the statement of the Operations Support Specialist
(OSS) at the Anaheim P&DC who was responsible for bid management. The OSS explained that
after the Human Resources Shared Service Center (HRSSC) posted Job ID 71789282, the Local
Service selected a PS-06 Mexican female Mail Processing Clerk, who had more seniority than
Complainant, as the successful bidder for the position. She said that the successful bidder,
however, failed to submit her medical documentation. The OSS said she then emailed HRSSC
asking that the job be awarded to the next senior bidder and the Selectee, an Asian male Mail
Processing Clerk was awarded the position.

The OSS stated that Complainant was not awarded the position, even though he was more senior
than Selectee, because Complainant had been selected as the successful bidder for Job ID
71789285. According to the OSS, if Complainant wanted to be considered for job post B after he
had been deemed the successful bidder for job post A, then he was required to submit a “live”
bidder request indicating an interest in job post B within 10 days after the award of job post A.
Since Complainant did not submit a live bidder request, the next senior bidder who had not been
assigned or awarded a position was selected.

The Agency found documentation in the record that bolstered the OSS’s reasoning. Specifically,
Article 37.3.F.8.a of the National Agreement states that when an employee is designated as the
successful bidder for a position and remains a live bidder on other bids, the employee shall notify
management in writing within ten days of his/her election if they want to remain a bidder on one
or more of those assignments. The notice shall identify the assignments by job and posting number.
Failure to notify management within ten days will cancel such other bids.

The Agency also found that, beyond his subjective beliefs, Complainant offered no evidence that
his race played a role in the selection decision and failed to demonstrate that the selection process
was pretextual. This appeal followed.

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. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
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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”).

On careful review of the record, the Commission finds no basis for reversing the Agency’s
decision. The undisputed record reveals that Complainant and Selectee applied for Job ID
71789282 and that Complainant had more seniority than the Selectee. The record also confirms
that Complainant was the successful bidder for Job ID 71789285 during the same timeframe that
a Mexican female Mail Processing Clerk was designated the successful senior bidder for Job ID
71789282. Next, documented procedures in the record establish that when a successful bidder is
disqualified, those bidders who have been selected for other positions must indicate in writing that
they maintain interest in other jobs within 10 days of selection or the job will go to the next senior
bidder who has not been awarded a job. Finally, Complainant admitted that he did not submit a
live bidder request indicating his continued interest in Job ID 71789282. We note that Complainant
explained that he did not know that the initial selectee had been disqualified until it was announced
that another senior bidder had been selected. We find that management articulated a legitimate,
nondiscriminatory reason for its actions which Complainant has failed to show was a pretext for
discrimination.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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 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. 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.
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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.

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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

September 27, 2019
Date