Maynard G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 9, 2017

0120150175 (E.E.O.C. Feb. 9, 2017)

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

Maynard G.,1
Complainant,

v.

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

Appeal No. 0120150175

Agency No. 1K-302-0026-14

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the September 17, 2014, final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager,
Maintenance Operations Support, EAS-20, at the Agency’s Processing and Distribution Center
in Atlanta, Georgia. On October 15, 2013, the Agency posted an internal announcement for a
vacant Manager, Maintenance Operations, EAS-23, position. The position was posted district-
wide with a limited area of consideration to all qualified impacted and non-impacted career
EAS employees. Eligibility was extended additionally to all formerly impacted employees
assigned within the district of the vacancy who were successful in obtaining a placement into
another position on or after September 21, 2013. Employees who were at the same or higher-
grade level who were interested in placement into the position were encouraged to make a

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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written request directly to the selecting official. On October 30, 2013, the Senior Operations
Manager (the Selectee) wrote the Plant Manager requesting consideration for the position
stating that she would be impacted by the realignment of the Atlanta area.

Complainant claims that he applied for the position on October 30, 2013. Complainant alleges
that on December 23, 2013, his manager (M1) informed him that he was not awarded the
position. Complainant claims that M1 told him that “The District” told him to select the
Selectee because she was an impacted employee, that the selection was not up to him, and that
he would not have made the decision to select the Selectee. Further, Complainant contends
that he had a wider maintenance background and was more qualified for the position than the
Selectee.

On April 12, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (Indian), national origin (Guyanese), and in
reprisal for prior protected EEO activity when, on December 23, 2013, he was not selected for
the position of Manager, Maintenance Operations, EAS-23.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Namely, M1 stated that he used a non-competitive
process which was open to all impacted employees to select the employee for the position, and
that Complainant was not part of the non-competitive process. M1 confirmed that he explained
to Complainant after the selection decision that the selection was made through the non-
competitive process. M1 denied telling Complainant that he was instructed by a higher-level
manager that he had to select the Selectee and that Complainant misinterpreted what he told
him. M1 explained that he told Complainant sometimes things are beyond their control, and
that he was speaking about the impacted, non-competitive employee. M1 stated that what was
beyond his control was the fact that they had an impacted, non-competitive employee interested
in the position and if they did not have an impacted, non-competitive employee, they would
have used the competitive process and Complainant would have been given an opportunity to
be selected for the position. M1 further explained to Complainant the difference between the

2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for stating
the same claim that is pending before or has been decided by the Agency or Commission. The
Agency determined that Complainant had raised the same matter in Agency No. 1K-301-0019-
12, requested a hearing (Hearing No. 410-2013-00249X), and later withdrew the complaint.
Complainant raised no challenges to the Agency’s dismissal of this claim on appeal; therefore,
it will not be addressed further in this decision.
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non-competitive process and the competitive process and issues involving impacted employees.
M1 added that if he had not selected the Selectee, he would have had to justify why she was
not selected since her job was being eliminated; she was qualified; and she was taking a
downgrade in pay to be selected for the position. The Plant Manager (PM) confirmed that he
and the District Manager concurred with the selection, and added that the Selectee may have
lost her job if she was not selected as her job was being eliminated.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. Complainant
filed the instant appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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 Constr. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming Complainant established a prima facie case of
discrimination and reprisal on the alleged bases, the Commission finds that the Agency
articulated legitimate and nondiscriminatory reasons for its actions. More specifically, M1
explained that he used the non-competitive process to select the Selectee and Complainant was
not part of the non-competitive process. ROI, at 135. M1 stressed that in accordance with
Agency policy, impacted employees were to be considered first so that they did not lose their
jobs. Id. at 139. The record reflects that the Selectee submitted a letter requesting
consideration for the position and stating that she would be impacted by the Atlanta-area
realignment. Id. at 187.

M1 affirmed that the Selectee was chosen instead of Complainant because she was a qualified,
impacted employee in the district and her position was being eliminated. ROI, at 138. M1
stated that he informed Complainant that had he not selected the Selectee, he would have had
to justify not selecting her because she was qualified; her job was being eliminated; and she
was taking a pay downgrade to be selected for the position. Id. at 137. Further, M1
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emphasized that he explained to Complainant that management had an impacted, non-
competitive employee interested in the position; otherwise, they would have used the
competitive process and Complainant would have had an opportunity to be selected for the
position. Id. at 138. PM confirmed that he, the Lead Plant Manager, and the District
Manager concurred in the selection as the selectee was qualified and properly selected under
Agency procedures. Id. at 151.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant
failed to carry this burden. As a result, the Commission finds that Complainant has not
established that he was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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.
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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 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. The requests 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 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

February 9, 2017
Date