Foster W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Apr 24, 2019

2019000524 (E.E.O.C. Apr. 24, 2019)

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

Foster W.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 2019000524

Hearing No. 510-2016-00246X

Agency No. 4B-000-6001-116

DECISION

On September 5, 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
August 9, 2018, final order concerning an equal employment opportunity (EEO) complaint
claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier for the Agency in Ponce,
Puerto Rico.

On December 29, 2015, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency discriminated against him based on race (African-American) and in reprisal for prior
protected EEO activity when, on December 1, 2015, Complainant was notified he had not been
selected for a supervisor position in the San German facility.

The Agency accepted the claim for investigation. The investigative record reflects the following
pertinent matters relating to the subject claim.

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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In September 2015, Complainant applied for a supervisor vacancy in the San German facility.
Complainant was interviewed for the position. The final selection was made by an Agency
manager (Manager) (Hispanic), who stated that the Selectee (Hispanic) was knowledgeable,
clear and concise during the interview, had goals for the San German facility, and demonstrated
that he was a team builder. The Manager stated that the Selectee was overall a “better fit.”

Complainant believed that the Manager was playing favorites when he chose the Selectee, who
was the Manager’s friend. Complainant also asserted that he had previously represented another
employee (hereinafter referred to as “E1”) in July and August 2015 against the Manager and the
Agency, and that he was being retaliated against. Complainant believed that the Manager
resented Complainant for helping E1 challenge the Manager’s decision to discipline him.

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). Complainant timely requested a hearing.

The AJ assigned to the case determined that the complaint did not warrant a hearing. On July 11,
2018, the AJ issued a Notice of Proposed Summary Judgment in favor of the Agency. The AJ
stated the Agency had provided legitimate, nondiscriminatory reasons for its selection, and that
Complainant had failed to present evidence that the reasons were pretext for discrimination and
retaliation. The AJ provided the parties an opportunity to respond to the proposed summary
judgment by July 26, 2018. The Agency timely responded. Complainant filed a Motion for
Extension of Time on July 24, 2018, but the AJ denied the motion on July 25, 2018. On July 27,
2018, the AJ issued a decision by summary judgment in favor of the Agency.

Based on the evidence developed during the investigation, the AJ determined that Complainant
failed to demonstrate that he was discriminated based on his race or subjected to unlawful
retaliation. The AJ found that Complainant failed to provide any persuasive evidence to counter
the Agency’s articulated, non-discriminatory reasons for the selection decision. The AJ
determined that Complainant’s assertions essentially amounted to nothing more than speculation
and were not supported by any probative evidence.

On August 9, 2018, the Agency issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

The instant appeal followed. Complainant asserts that there are facts in controversy for which a
hearing should take place. Specifically, Complainant asserts that there are contradicting
statements as to which management official made the final selection for the position.
Complainant asserts that because there are contradicting statements in the record, summary
judgment was clearly inappropriate.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The
U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment a court does not sit as a fact finder. Id. The evidence
of the nonmoving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the nonmoving party's favor. Id. A disputed 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. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding under Title VII, an
AJ may properly consider summary judgment only upon a determination that the record has been
adequately developed for summary disposition.

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. Here, Complainant
has failed, either at the hearing stage or on appeal, to point to any particular evidence in the
investigative file or other evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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 employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
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Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the responsible Agency official has articulated legitimate, non-discriminatory reasons for its
actions. Specifically, the Manager stated that the Selectee had the best overall qualifications for
the position. The Manager explained that he sought someone who demonstrated proper basic
knowledge of operations, demonstrated positive performance, and was a good team builder. The
Manager noted that the Selectee interviewed well and provided clear and concise responses to
questions asked. The Manager denied playing favorites and stated that he had met the Selectee
“probably 3 times in four years.” The Manager stated that Complainant was interviewed for the
position over the phone, and that he found Complainant’s responses to be short and lacking.

In non-selection cases such as the one now before us, Complainant could demonstrate pretext by
showing that his qualifications for the position were plainly superior to those of the
Selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015).
Here, however, there is no clear evidence that Complainant was plainly superior to that of the
Selectee.

Complainant argued that the Agency’s reasons were clearly pretext for discrimination. On
appeal, Complainant noted that during the investigation, the Manager stated that the Postmaster
(Hispanic) and he shared equal responsibility in the decision to hire the Selectee. However, in his
affidavit, the Postmaster stated that he did not recall having any participation in the selection,
and that the hiring was done completely by the Manager. While Complainant might be troubled
by the apparent discrepancy, this matter alone is not enough to demonstrate that the Agency’s
reasons were pretext for non-selection.

Agencies have broad discretion to choose among equally qualified candidates as long as the
selection is not based on unlawful considerations. Complainant v. Dept. of Homeland
Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may select candidates with fewer
years of experience if they believe that such candidates are best qualified to meet the needs of the
organization. Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25,
2015). They may even preselect a candidate as long as the preselection is not premised upon a
prohibited basis. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858
(Mar. 9, 2015).

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Here, as detailed by the record and in the AJ’s decision, the record supports the AJ’s
determination that the Agency’s proffered reasons regarding the non-selection were legitimate
and non-discriminatory. Complainant did not provide persuasive arguments, below or on appeal,
that the Agency’s actions were pretext for discrimination.

CONCLUSION

We AFFIRM the Agency’s final order implementing the AJ’s final decision without a hearing,
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.
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.
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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.
Carlton M. Hadden, Director
Office of Federal Operations

April 24, 2019
Date