Tammi W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 3, 2020

2019002986 (E.E.O.C. Jun. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019002986 Hearing No. 430-2018-00432X Agency No. 4K-230-0033-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 4, 2019, finding no discrimination regarding her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager, Customer Services, EAS-22, at the Agency’s Chesapeake Main Post Office in Chesapeake, Virginia. Complainant applied for the Postmaster, EAS-24, Chesapeake, Virginia position. On August 21, 2017, Complainant was interviewed, but she was informed on November 15, 2017, that she was not selected for the 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. 2019002986 2 The Selecting Official (SO) indicated that he did not utilize a review committee in the selection process instead he utilized the eCareer application and the interview. There were ten qualified applicants, including Complainant, and the SO rated each applicant’s eCareer knowledge, skills, and assessments (KSAs) on a scale of 1 - 3 (poor to good) for nine requirements related to the position at issue with the possible highest total score of 27 (highest score 3 multiplied by 9 questions). The actual scores ranged from 24 (the highest) to 9 (the lowest). The SO indicated that he selected the selectee (SE), who received total scores of 24. Complainant received a score of 15 and was not selected. On January 15, 2018, Complainant filed her complaint alleging discrimination based on sex (female), age (over 40), and in reprisal for prior EEO activity when November 15, 2017, she was not selected for the position of Postmaster, Chesapeake, Virginia Post Office.2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 14, 2019, the Agency filed Agency’s Motion for Summary Judgement. Complainant did not file a response. On March 29, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. Therein, the AJ adopted the facts set forth in the Agency’s motion. The Agency’s final order implemented the AJ’s decision. Complainant appeals the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2 In her complaint, Complainant also alleged discrimination concerning her being excluded and not contacted for meeting(s) and her October 21, 2015 nonselection. On February 5, 2018, the Agency dismissed the foregoing claims for failure to state a claim and/or due to untimely EEO Counselor contact pursuant to 29 C.F.R. §§ 1614.107(a)(1) and/or 1614.107(a)(2), respectively. Complainant contacted an EEO Counselor regarding the matters on November 29, 2017. Since Complainant did not contest this dismissal during the hearing or on appeal, we will not address these claims further herein. 2019002986 3 In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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 the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). After a review of the record, we, assuming arguendo that Complainant had established a prima facie case of discrimination, find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The SO stated that he selected the SE, a female, younger than Complainant, because the SE was the most qualified candidate based on leadership, professionalism, and proven performance. Specifically, the SO noted that the SE was detailed as an Acting Postmaster (Officer-in-Charge) at Chesapeake Post Office from March 2017, until the time she was selected for the Chesapeake Post Office Postmaster position at issue in November 2017; and prior to that the SE served as an EAS-23, Manager, Customer Service at Virginia Beach Post Office, a very large carrier post office. The SO stated that he directly managed both Complainant, an EAS-22 Manager, and the SE, EAS-23 Manager, and he was familiar with their performance. The SO noted that the SE was more communicative with the SO than Complainant was, and the SE handled customer and congressional complaints better than Complainant. Complainant claims that she managed the Chesapeake facility from January 2013, until August 2015 while its Postmaster was on extended leave. 2019002986 4 The SO however indicated that Complainant failed to inform him of two incidents of delayed mail while she was managing the facility. The SO indicated that Complainant’s level of experience and past performance were not as good as the SE. The SO also indicated that he was not aware of Complainant’s prior EEO activity at the time of the selection. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for the position. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to the SE’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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 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. 2019002986 5 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. 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 June 3, 2020 Date