[Redacted], Larissa E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2022002727 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Larissa E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2022002727 Hearing No. 430-2019-00498X Agency No. 6Z-000-0019-18 DECISION On April 14, 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 16, 2022, final order 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. 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 an Administrative Assistant at the Agency’s Telecom and IT Hardware Division in Greensboro, North Carolina. On December 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and color (Black) when, on September 17, 2018, she was notified that she was not selected for the Facilities Contract Specialist (FCS) position. The contracting officer for the Agency served as the Selecting Official. 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. 2022002727 2 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 29, 2019, motion for a decision without a hearing (Motion) and issued a decision without a hearing on March 8, 2022. In the Motion, the Agency explained that while the Complainant and the selected candidate (Selectee) were equally adept and suited for the role, the Selecting Official found that Complainant was slower to grasp concepts and provided him with incorrect information during the interview process. In contrast, the Selecting Official explained that the Selectee showed a real aptitude and enthusiasm for the position and appeared equally if not more adept for the role. As to Complainant’s claim, the Agency’s motion argued that Complainant could not show pretext, in that her qualifications were not plainly superior to that of the Selectee. Moreover, the Agency noted that even if Complainant could successfully show that the Selectee was preselected, such an action would not be unlawful unless shown to be driven by discriminatory animus, which it was not. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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. We acknowledge that Complainant has submitted arguments on appeal. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. On appeal, Complainant points to the fact that she served for a longer period of time in the FCS temporary position and received a higher score from the Review Committee tasked with evaluating candidates. Additionally, Complainant argues that the Agency indicated that the Selectee served in the FCS temporary position for upwards of two weeks, while Complainant contends that the Selectee actually served for a mere five days. She also argues that the Selectee was chosen due to a personal relationship with the Selecting Official. 2022002727 3 We note that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). 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. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Despite the differences highlighted by Complainant, we do not find that Complainant has shown that she was plainly superior to the Selectee, nor that her non-selection was discriminatory. Furthermore, although Complainant contends that the Selectee was chosen due to personal connections, she has not presented proof of this assertion, nor has she shown that any pre- selection was made based on unlawful considerations. The record reflects that the Selectee was chosen for a number of reasons, including that she was especially adept for the FCS role despite detailing for only a short amount of time. Complainant provided that she detailed in the FCS position far longer than the Selectee and scored higher with the Review Committee than the Selectee; nonetheless, she has not disputed the Selectees qualifications, nor the hiring reasons stated by the Selecting Official. Similarly, Complainant has not provided any evidence which would cast doubt on the legitimacy of the selection process. In sum, we do not find that Complainant has presented genuine issues of material fact necessitating a hearing. Upon review of the AJ’s summary judgment decision, the arguments on appeal, and the record as a whole, we find that the Motion adopted in the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. In consideration of both parties’ motions, 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 Motion, adopted by the AJ, correctly identified the legal standards for Complainant to prove that she was subjected to discrimination based on race and color. 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2022002727 4 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). 2022002727 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 September 12, 2022 Date