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

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022001025 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willa B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001025 Hearing No. 460-2021-00165X Agency No. 4G-770-0285-20 DECISION On December 11, 2021, 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 November 26, 2021, 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 Supervisor of Customer Services, EAS-17, at the Agency’s Westbrae Post Office in Houston, Texas. On November 20, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), color (brown)2, and age when, in June of 2020, she was denied upward mobility when she was non-selected for the 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. 2 The EEO Counselor’s report indicates Complainant indicated her color was “[c]armel [s]kin.” 2022001025 2 Manager of Customer Services positions at the Westbrae Post Office and at the Fairbanks Station. The Agency accepted the complaint and conducted an investigation that produced the following pertinent facts. Complainant did not apply to the position at the Fairbanks Station. Report of Investigation (ROI) at 67-68. However, Complainant applied, via eCareer, for the Manager of Customer Services position at Westbrae Post Office. ROI at 66. Complainant believed she possessed all the specific qualifications for the position but was not interviewed. Id. Complainant was informed by letter that she was not selected for the position. Id. at 130-31. A review panel, consisting of three managers (Manager1, Manager2, and Manager3), ranked and reviewed the candidates. ROI at 79-80; 88-89; 96-97, and 105. The panel then referred the top seven candidates to the selecting official (Selecting Official). Id. at 80; 89. Complainant was not one of the top seven candidates. Manager1, Manager2, and Manager3 attested that Complainant did not meet all the specific qualifications. ROI at 80; 89; 97. There were nine specific qualifications on which candidates were scored. Id. at 80; see also id. at 22- 24; 119-21. The review panel assessed the applicants’ Form 991s to see if they possessed the Knowledge, Skills, and Ability (KSA) to fulfill the position. Id. at 80. On the second qualification, Complainant was given a score of zero, because she either did not answer the KSA or did not answer it adequately. ROI at 80; 89. This score of zero on the second qualification disqualified Complainant from further consideration. Id. Selecting Official did not consider Complainant for the position at issue because the review panel did not refer her to him for an interview. ROI at 105. Selecting Official added that strong answers to the interview questions were the criteria most important in deciding whom to select for the position. Id. Selecting Official attested that the selectee (Selectee) was a Hispanic male with “peach” skin, and he did not know Selectee’s age. ROI at 105. Selecting Official attested that Selectee met all the qualifications. Id. at 106. Selecting Official also stated that, of the remaining six finalists, four were African-American; three were black; and one was brown. ROI at 106. All six were women. Id. Selecting Official did not know their respective ages. Id. When asked how her qualifications compared to Selectee’s, Complainant answered: “unk[n]own[.]” ROI at 66. Upon being asked if Selectee met all the qualifications, Complainant replied that Selectee was from Austin, along with Selecting Official. Id. at 67. 2022001025 3 Complainant said, in response to a question about why she believed race was a factor in her non- selection, that all promotions were given to people who had worked with Selecting Official in Austin. ROI at 67. Complainant replied “non blacks” when asked why she believed color was a factor in her non- selection, and she replied “males” when asked why she believed sex was a factor. ROI at 67. When asked why she thought age was a factor in her non-selection, Complainant replied: “They were young[.]” ROI at 67. 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 but subsequently withdrew her request. Consequently, 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.3 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. 3 In its final decision, the Agency noted that Complainant acknowledged that she did not apply for the Fairbanks Station position and indicated that it would not address that nonselection claim. 2022001025 4 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). 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 Complainant was not referred to Selecting Official for an interview for the position at Westbrae Post Office because she was not one of the top seven candidates, due to her scoring a zero on the second KSA requirement. Selecting Official subsequently could not select Complainant, as she did not interview and was not a finalist. Selecting Official added that strong answers to the interview questions were the criteria most important in deciding whom to select for the position. Selecting Official selected Selectee from the pool of seven finalists, and, according to the review panel and Selecting Official, Selectee met all the requirements for the position. 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. In a non-selection case such as this one, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). Here, Complainant has neither alleged nor shown that she was the plainly superior candidate. Pretext can also 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). In the instant matter, Complainant submits that the employees who get promoted all worked with Selecting Official in Austin. Complainant further points out that this is true of Selectee. We note that the review panel, and not Selecting Official, chose the finalists. Moreover, Complainant was not the only candidate to receive a zero on one of the nine KSA requirements. 2022001025 5 However, insofar as Complainant is alleging that the selection process was tainted by favoritism and/or that Selectee was pre-selected, the Commission has found that an agency may pre-select a candidate as long as the pre-selection is not premised upon a prohibited basis. Michael R. v. Dep’t of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). We 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. Burdine, 450 U.S. at 259. 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 animus. Regarding the position at the Fairbanks Station, as noted above, Complainant acknowledged that she did not apply for that position. Generally, a complainant who claims discriminatory non- selection is not sufficiently aggrieved to state a valid claim when she has not applied for the position in question. See Owen v. Soc. Sec. Admin., EEOC Request No. 05950865 (Dec. 11, 1997). However, the Commission has found that, under certain circumstances, a complainant might be aggrieved by non-selection for a position for which she did not apply where the complainant demonstrates that the Agency discouraged her from applying or the application process was secretive. See Ozinga v. Dep't of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991). Here, Complainant has not presented any evidence that she was discouraged from applying or that the application process was secretive. Accordingly, we find dismissal of this claim is appropriate. 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. 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). 2022001025 6 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. 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. 2022001025 7 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 March 15, 2023 Date