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

Equal Employment Opportunity Commission

Sep 17, 2019

0120182140 (E.E.O.C. Sep. 17, 2019)

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

Myung S.,1
Complainant,

v.

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

Appeal No. 0120182140
Hearing No. 490-2017-00024X
Agency No. 1C-371-0062-16

DECISION

On June 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
May 9, 2018, final decision concerning her 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant established that she was discriminated against based
on her race and age when she was not promoted to a Senior Operations Support Specialist position.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Operations Support
Specialist at the Agency’s Processing and Distribution Center facility in Nashville, Tennessee. On
July 23, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African-American) and age (59) when on or around May 20, 2016, she

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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became aware that she had not been promoted to the Senior Operations Support Specialist position.
Complainant maintained that she applied for the position and was interviewed. Soon thereafter,
however, she received an email that indicated that a white, younger (44) coworker was selected.
Complainant maintained that she was better qualified than the selectee and argued that she should
have been selected. Complainant also maintained that black and older women were not promoted
in her work unit.

Complainant argued that she was more qualified than the selectee, as she had been with the Agency
longer, and knew the position better than the selectee. The Agency maintained, however, that even
if Complainant established a prima facie case of discrimination, it articulated legitimate,
nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the
position because she was not the best qualified candidate for the position. Management explained
that eight candidates were interviewed and ranked, the highest candidate received 16 points, two
candidates, which included the selectee received 15 points. Complainant received a score of 12
points, and the remining four candidates received lower scores. Management indicated that the
selectee was chosen because she had prior supervisory experience and an Associate degree. The
Agency argued that Complainant did not show that the Agency’s reasons were pretext for
discrimination.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Although Complainant requested a hearing, the
AJ subsequently dismissed the hearing request on the grounds that Complainant failed to comply
with a discovery request. The AJ noted that Complainant requested an extension of time to comply
with the Agency’s discovery request. The AJ granted the extension but Complainant, upon
expiration of the extension, had still not complied. Consequently, the AJ remanded the complaint
to the Agency to issue a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that there was a problem with her email
and that is why her discovery information was not delivered. She included the discovery
information on appeal. Complainant did not contest the AJ’s actions.

In response, the Agency, in pertinent part, requests that its FAD be affirmed.

STANDARD OF REVIEW

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).

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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
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”).

ANALYSIS AND FINDINGS

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that, even if we assume, arguendo, that Complainant
established a prima facie case of race and age discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that when comparing Complainant and the
selectee, their resumes showed that while Complainant had been an Operations Support Specialist
for eleven years as opposed to the selectee’s six, the selectee had extensive experience as a
Supervisor, Distribution Operations and in many other areas, and had almost been a postal
employee for as long as Complainant. The selectee also had an associate degree from college.

To show pretext, Complainant and one of her witness’s argued that black women and older women
have not been promoted at her work location. Complainant however, did not provided any
evidence to support this claim, and she has not shown that discriminatory animus was involved in
the instant nonselection. Further, we also note that in nonselection cases, Complainant can
demonstrate pretext by showing that her qualifications for the position were plainly superior to
those of the selectee.
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Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015). Given the
facts in this case, we find that Complainant has not demonstrated that she was so better qualified
than the selectee that discrimination could be inferred.2

Finally, we find that the documents Complainant provided on appeal, among other things, her
opposition to the Agency’s motion for summary judgment and responses to interrogatories, are not
material to any matter at issue on appeal.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate
that she was subjected to 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

2 We have repeatedly held that mere years of service, or length of service, does not necessarily
make an individual more qualified to meet the needs of an organization. Kenyatta S. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120161689 (Sept. 21, 2017); Collins v. Dep’t of the
Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). Neither does years of service
automatically make an individual more qualified. Ford v. Dep’t of Health and Human Services,
EEOC Appeal No. 01913521 (Dec. 19, 1991). The Commission will not substitute our judgment
for the judgment of selecting officials familiar with the present and future needs of their facility
and therefore in a better position to judge the respective merits of each candidate, unless other facts
suggest that proscribed considerations entered into the decision-making process. See Williams v.
Dep’t of Education, EEOC Request No. 05970561 (Aug. 6. 1998).

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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 17, 2019
Date