Malcom N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181499 (E.E.O.C. Sep. 20, 2019)

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

Malcom N.,1
Complainant,

v.

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

Appeal No. 0120181499
Hearing No. 443-2017-00028X
Agency No. 4E500002016

DECISION

On March 29, 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
March 1, 2018, final order 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 order.

ISSUE PRESENTED

Whether the EEOC Administrative Judge correctly determined that Complainant was not
discriminated against based on race when on March 30, 2016, he was notified he was not selected
for the Mail Handler Assistant position under job posting number NC95297886.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an Applicant, Mail Handler
Assistant (MHA) at the Agency’s Processing and Distribution Center (P&DC) in Waterloo, Iowa.
On July 5, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of race (African-American) as set forth above.

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 applied for a position as an MHA in Waterloo, Iowa on January 9, 2016. He had
previously worked for the Agency as a Holiday Clerk Assistant in Cedar Falls, Iowa, and his last
day was December 25, 2015. A1, the Operations Support Specialist, at the Processing and
Distribution Center (P&DC) in Des Moines, Iowa was the selecting official for the MHA position
at issue. A2, Senior Operations Support Specialist, approved the selection decision.

The record indicates that twenty-five (25) applicants applied for one MHA vacancy. Each
applicant was required to take a test prior to being offered an interview, and the test scores were
ranked. The Agency utilized the “rule of three,” meaning that the selectee had to be one of the top
3 recommended candidates. On January 14, 2016, Complainant took the Delivery, Distribution
and Retail examination, and scored 79.3, which ranked him 13th out of the 25 applicants. Fourteen
(14) applicants were scheduled for interviews in order of their test scores. Complainant was
included because he ranked 13th.

As part of its process, the Agency also conducts a criminal background check for all applicants for
all positions. On March 7, 2016, the Agency conducted a criminal background check for
Complainant. The criminal history report from 2009 through 2016 showed multiple misdemeanor
charges against Complainant with his most recent charge on September 25, 2015. The charges
were not related to traffic violations. On March 7, 2016, the company that conducted the
background check, mailed Complainant a copy of their investigative report, a summary of his
rights, and a dispute request form. All employees have the opportunity to contest and explain the
information contained in the report. Applicants are rejected only after a finding that their criminal
history was directly related to the applicants’ capacity to perform as an Agency employee.

The record indicates that Complainant was deemed not suited for hiring. In addition to his test
score ranking, A1 considered his criminal background check which showed recent criminal
convictions which were not for traffic violations. The convictions included harassment and
interference charges. According to the Agency, MHAs handle packages of value and must be able
to follow instructions from supervisors and cooperate with other employees. Despite being
rejected for employment, in March 2016, Complainant was scheduled for an interview, but was
escorted out of the facility when the interviewers realized that A2 had mistakenly sent him an
invitation to interview. C1, a Caucasian male, was selected for the MHA position. He had the
highest test score of the interviewed candidates (83.20).

On March 30, 2016, Complainant was notified that he was not selected for the position of MHA
because he did not meet the eligibility or suitability requirements of the position. Even had
Complainant been interviewed, he would not have been selected based on his low-test score.
Complainant argued that his criminal history did not show violent crimes or felonies; and that the
charges were in existence when he was selected as a temporary holiday employee.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 23, 2017,
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motion for a decision without a hearing and issued a decision without a hearing on February 20,
2018. The AJ determined that there were no issues of material fact to be resolved by a hearing
and found that Complainant did not show that he was discriminated against based on his race.2
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant, among other things, contends that racial discrimination occurred but was
excused by the AJ. He maintained that the test score explanation was a pretext to cover up
discrimination; and that the Agency did not follow policy, nor did it follow “EEOC law,” when
handling criminal records. Complainant requests that the entire case be reviewed again.

The Agency did not submit a brief on appeal.

STANDARD OF REVIEW

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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).

2 Although Complainant never specifically raised a disparate impact claim, the AJ requested
additional information on the issue of whether the Agency's background check policies had a
disparate impact on African Americans. She also addressed the issue in her decision.

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ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must first determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We have carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
raised contentions and conjecture, but did not present any evidence. We note that, in addressing
an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition
must consist of more than mere unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific facts showing that there is a genuine
issue for a hearing. See Celotex, 477 U.S. at 324. Ultimately, the AJ correctly determined that
there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the
AJ’s issuance of a decision without a hearing was appropriate.

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
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Because the selectee, C1, was a different race than Complainant, we find that he established a
prima facie case of discrimination based on race. Like the AJ, we also find that the Agency
provided a legitimate, non-discriminatory reason for its selection decisions, i.e., Complainant’s
low ranking as a result of his test score, and his criminal conviction history. We find no evidence
of pretext here. There is no dispute that the Agency’s intent was to select someone from the top
three candidates. Complainant’s test score was too low for him to have been ultimately selected.
Although Complainant argued that his test score was merely a pretext to discriminate against him,
we find no evidence to support this contention. Complainant also maintained that the Agency’s
reliance on his criminal conviction record was also discriminatory. He indicated that his criminal
history did not show violent crimes or felonies; and that his convictions were not new and existed
when he was selected as a temporary employee. We note, however, that his previous position was
a temporary holiday seasonal position, but the position at issue here was a permanent position for
which he did not score high enough because he was not in the top three.

On the issue of the Agency’s reliance on Complainant’s criminal history, we find that the record
indicates that the Agency considered several factors in making its decision. The Agency clearly
considered the nature of the most recent convictions, i.e., harassment and interference, and how
they related to the position for which Complainant was being considered in that they reflected on
how he might interact with his supervisors and co-workers. We find that a review of the Agency’s
policy and its application to Complainant and other applicants with criminal conviction records as
articulated in the record is consistent with the principles set forth by the Commission in its
guidance document EEOC Enforcement Guidance on the Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, No. 915.002
(April 25, 2012).
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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
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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

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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 20, 2019
Date