[Redacted], Antwan N., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2022002606 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antwan N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022002606 Hearing No. 530-2020-00304X Agency No. 1C-441-0062-19 DECISION On April 6, 2022, 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 23, 2022, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency’s Processing Distribution Center in Cleveland, Ohio. On September 3, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (60) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when, on April 23, 2019, he was informed he was not selected for the Level 10 Mechanic position. 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. 2022002606 2 Complainant reported that he was not awarded the Level 10 position due to filing prior EEO complaints over the last nine years of his employment, and due to his age. He explained that he applied for the position multiple times over the years, reaching the interview process, but never received a promotion. In contrast, he reported that others with less experience are promoted. A management official involved in the interview phase explained that Complainant did not score high in the process to be the candidate selected for the Level 10 job. She explained that in the past she provided Complainant with feedback designed to improve his interview skills, encouraged Complainant to take classes and courses to develop his skills, and suggested that Complainant request a mentor or shadow a Level 10 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 February 24, 2022, motion for a decision without a hearing and issued a decision without a hearing on March 10, 2022. In the AJ decision, the AJ determined that the indisputable evidence supported that the Agency offered legitimate, non-discriminatory reasons for not selecting Complainant for the position. The AJ noted that the Agency explained that the selection panel was not aware of Complainant's age or prior EEO activity, nor was Complainant on the eligible register at the time the alleged comparator was selected for promotion. Further, the AJ indicated that the proffered comparator underwent an interview with an entirely different interview panel and was selected on April 4, 2019. The AJ also noted that in Complainant's interview, he scored below average in five of six test areas, and could not be placed on the selection register. The AJ determined that Complainant did not present evidence which would establish pretext or discriminatory animus. In sum, the AJ determined that Complainant failed to prove by a preponderance of the evidence that the Agency subjected him to discrimination as alleged. 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. This appeal followed. On appeal, Complainant has submitted a lengthy statement. In relevant part, Complainant argues that the AJ was hiding material facts that went against the Agency as well as disputed the AJ’s recitation of the facts. Complainant also contends that the Agency’s failure to provide the entirety of his interview is evidence of pretextual discrimination. In response, the Agency argues that Complainant has not presented prima facie evidence of discrimination, that Complainant was never under consideration for the same job as the alleged comparator, and that Complainant was not eligible to be placed on the relevant selection register. 2022002606 3 In the Agency’s appeal brief, it includes that interview scoring sheet comparing Complainant and the alleged comparator once again - therein the numbers indicate that Complainant scared significantly lower in all categories (information usage, safe work habits, analytical problem solving, organizational citizenship, skilled trades, and electronics knowledge). In sum, the Agency contends that poor performance in an interview is a legitimate ground for non-selection. 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. In the present case, although Complainant contends that he should have received the position, we note that the record clearly indicates that the proffered comparator outperformed Complainant in the interview process. We note that Agencies have broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We also note that the Commission has long held that a person’s length of experience does not necessarily mean he is better qualified. See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). We acknowledge that Complainant contends that he had sufficient experience, in both quality and quantity. However, the record indicates that following a selection process he was ranked below the comparator. Upon review of the AJ’s summary judgment decision, the arguments on appeal, and the record as a whole, we find that the AJ decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Accordingly, the AJ properly issued a decision without a hearing. We also agree that the AJ’s decision correctly identified the legal standards for Complainant to prove that he was subjected to discrimination based on age and reprisal. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2022002606 4 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022002606 5 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. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 6, 2023 Date