[Redacted], Wilda M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022003289 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003289 Hearing No. 430-2022-00138X Agency No. 1C-251-0014-21 DECISION On May 24, 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 May 5, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Custodian, P- 04, at the Agency’s Processing & Distribution Center facility in Roanoke, Virginia. On June 14, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Korean), sex (female), and age, when, on February 22, 2021, she was not placed on the Promotion Eligibility Register for the Maintenance Support Clerk 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. 2022003289 2 The Agency accepted the complaint and conducted an investigation that produced the following pertinent facts. Complainant attested that she applied for an open posting for Maintenance Support Clerk, PS-07, on November 30, 2020, and found out on February 22, 2021, that she was not selected for it. Report of Investigation (ROI) at 73-74. Complainant believed she had passed the “718 computer skills test” [Test #718, Computer Basics] and would have been selected, had she passed the interview, because she had all the skills and qualifications for the position. ROI at 74-75; see also id. at 84. According to Complainant, there were two selecting officials, Manager of Maintenance Operations Support (“Manager 1”) and Manager of Maintenance (“Manager 2”). ROI at 74. Complainant claimed Manager 1 was responsible for not placing Complainant on the Promotion Eligibility Register. Id. at 76. Complainant also relayed that Manager 1 said Complainant lacked communication skills. Id. Complainant disagreed, saying she had no difficulty communicating orally or in written form. Id. at 77. Complainant named Comparator (black, male, age unknown) as an example of an employee with whom she was equally qualified who, unlike Complainant, was placed on the Promotion Eligibility Register. ROI at 77. According to Complainant, Manager 1 and Manager 2 had treated her with discrimination and disparity. ROI at 78. Complainant attested that, as an Asian-American, she spoke with an accent and was held to a different standard. Id. She also believed that there were several males and younger employees placed on the Register who, she felt, had the same qualifications that she did. Id. Managers 1 and 2 attested that Complainant had not been placed on the Promotion Eligibility Register for Maintenance Support Clerk. ROI at 83; 121. There was no vacant position, they attested, but Managers 1 and 2 were notified that Complainant had applied on January 21, 2021. Id.; see also id. at 93. Manager 1 explained that the Promotion Eligibility Register is used for future promotions into vacant positions. Id. at 85. Managers 1 and 2 attested that applicants must pass Test #718, Computer Basis, and demonstrate they possess the minimum level of proficiency in each of the 12 required Knowledge, Skills, & Abilities (KSA) requirements for the position. ROI at 84; 122. Managers 1 and 2 also affirmed that there was no review board in the application process. Id. at 85; 123. As for Complainant’s qualifications for the position, Managers 1 and 2 said Complainant passed Test #718 but failed to meet several KSA requirements. ROI at 84; 122-23. 2022003289 3 Managers 1 and 2 said Complainant failed to meet KSA #2, Knowledge of Word Processing Programs, because, among other things, she had never created a word-processing document; wrote things down on paper and gave them to others to enter into the computer for her; could not name any word-processing programs or software she had used; and could not name typical uses for word-processing software. ROI at 84; 123. Managers 1 and 2 also attested that Complainant did not meet KSA #6, Ability to Work Under Pressure, because, among other things, she could not follow a scenario of time-sensitive tasks; could not state what actions would be taken to handle the time-sensitive tasks; and she did not review her PS Form 991 application for accuracy because she was under pressure to meet the deadline. ROI at 85; 123. In addition, Managers 1 and 2 declared, Complainant did not meet KSA #10, Ability to Compile and Summarize Information. ROI at 86; 123. This was because, among other things, Complainant stated in the interview that she did not use electronics; she had never used a spreadsheet program or created a spreadsheet; and she normally used paper but would use a computer if she got the job. Id. In addition, Manager 1 added, there was no indication on her PS Form 991 application that she had successfully completed training for preparing tables, charts, and brief narratives or previously held a position where she was responsible for this. Id. at 86. Managers 1 and 2 confirmed that Complainant was interviewed by them both on February 11, 2021. ROI at 85; 124. Manager 1 said she was responsible for determining if applicants met the required KSAs for the position. ROI at 83. Manager 2 said Manager 1 was the selecting official, but Manager 2 was present during the interview. Id. at 121. According to Manager 2, she did not discuss the results of the interview with Manager 1. Id. at 121-22. Both Managers 1 and 2 attested that no one was selected for the position. ROI at 87; 124-25. As for Comparator, both managers affirmed that he was placed on the Promotion Eligibility Register several years before Manager 1 was an employee at the facility and before Manager 2 became a manager there. Id. at 90; 125. Neither Manager 1 nor Manager 2 interviewed Comparator. Id. at 90; 125. 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 requested a hearing, but the AJ denied the hearing request as a sanction for her failure and/or refusal to follow the Orders of the Commission. Additionally, and in the alternative, the AJ deemed Complainant’s request for a hearing withdrawn for failure to participate in the hearings process. 2022003289 4 The AJ remanded the complaint to the Agency, and the Agency issued a final decision 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. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency’s action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). 2022003289 5 Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated a legitimate, nondiscriminatory reason for its action. The Agency explained that to be placed on the Promotion Eligibility Register, an employee must pass Test #718 and meet minimum proficiency in all 12 KSA requirements. Managers 1 and 2 affirmed that Complainant failed to meet three KSAs. Specifically, she failed to show minimum proficiency in KSAs # 2, 6, and 10 because, among other things, for KSA #2 (Knowledge of Word Processing Programs), Complainant had never created a word-processing document and showed that she was unfamiliar with word-processing programs; for KSA #6 (Ability to Work Under Pressure), Complainant could not follow a scenario of time-sensitive tasks or explain how she would handle time-sensitive tasks; and, for KSA #10 (Ability to Compile and Summarize Information), Complainant had no experience creating or using spreadsheets. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency’s reason was a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). Upon review of the record in its entirety, we find that Complainant has not shown by a preponderance of the evidence that the Agency’s explanation was pretext, designed to conceal discriminatory or retaliatory animus. 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 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. 2022003289 6 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). 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. 2022003289 7 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 January 26, 2023 Date