Valentine F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120171322 (E.E.O.C. Dec. 4, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Valentine F.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120171322

Agency No. 4B-110-0041-16

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 19, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
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

During the period at issue, Complainant worked as a Supervisor Customer Services, EAS-17, at
the Agency’s Brooklyn Van Brunt Station in Brooklyn, New York.

On April 21, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of age (YOB: 1952) and reprisal for prior protected EEO
activity2 when:

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 In the final decision, the Agency adds reprisal as a basis because the post investigation report,
Complainant’s affidavit, and the EEO Counselor’s report indicated that Complainant asserted
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1. on November 18, 2016,3 Complainant was removed from his detail in the operations
support program and returned to his position at the Van Brunt Station;

2. on January 2016, Complainant applied for a detail opportunity as a Field Recruiter,
EAS-19, but he never received a response after being granted an interview on January
11, 2016; and

3. on or about February 19, 2016, Complainant applied for a detail opportunity in
Operations Program Support, but he never received a response to his application.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. The Complainant
requested a final decision.

On January 19, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant argues that he was removed from his
detail position at Operations Program Support after he filed an EEO complaint regarding his non-
selection for a Function 4 Specialist Detail for the Operations Support Program. Complainant
further argues that the management officials were aware of his prior EEO affidavits and provided
conflicting information regarding the reasons for Complainant being removed from his detail.
Complainant also argues that his qualifications for the Field Recruiter Detail were superior to the
candidates selected for this positon.

ANALYSIS AND FINDINGS

Disparate Treatment:

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

that the alleged incidents occurred because of his prior protected EEO activity. Therefore, we
include this basis in our discussion.

3 Due to a typographical error, the date for this claim is November 18, 2015.
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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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions. The
Postmaster at the Brooklyn Post Office Station (“P1”) (YOB: 1955) stated, regarding claim 1,
that the Area manager requested that all employees on detail for over one year return to their
original position. P1 further stated that he requested all employees on detail to return. However,
P1 explained that the manager of Operations Programs Support (“M1”) (YOB: 1960) decided
which employees returned. P1 also explained that Complainant’s original position was
supervisor to the Van Brunt Station, and approval from the Area office was required for details
exceeding one year.

M1 stated that Complainant was removed from the Operations Support Program on November
18, 2015. M1 stated that he was involved in Complainant’s removal, but explained that P1
requested that Complainant be returned to assist with “peak holiday season mail volume” at the
Van Brunt Station because the station “is a high-volume parcel/package area which requires
additional supervision to effectively manage the operation.” M1 explained that all detail
assignments are temporary positions and “staffing is filled on an as needed basis.” M1 further
explained that while Complainant returned to his original position in November 2015,
Complainant returned to his detail position in April 2016, and Complainant returned to his
original position after he completed the April 2016 detail.

The record includes a copy of the Supply Management Detail/Temporary Assignment Process,
effective March 2015, which indicates, in pertinent part, that approval for details exceeding one
year is required and there must be a “critical need” to extend a detail beyond one year.

Regarding claim 2, M1 explained that he did not have any involvement with the interview
process and the detail announcement was posted by the Human Resources Manager (“M2”)
(YOB: 1962).

M2 explained that Complainant did not receive a response regarding the results of his interview
due M2’s “oversight” to notify Complainant and the other unsuccessful candidates.
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M2 explained that he called the two selected candidates individually and informed them of their
assignment dates. M2 further explained that the only written notification he provided was
through a January 22, 2016 email to the field announcing the successful candidates.

M2 stated that a “matrix” was used for applicant selections, but M2 could not provide the review
package, interview sheets, and matrix because these items were removed due to an insect
infestation in his office. M2 explained that Complainant “did not have a working knowledge of
the hiring systems and regulation to enable him to hit the ground running.” M2 further explained
that the selectees had this knowledge-base and were considered “Ready Now” based off of their
interview responses.

The Human Resources Generalist (“HRG”) (YOB: 1972) stated that she interviewed applicants,
including Complainant, for the Field Recruiter detail opportunity. The HRG further stated that
M2 was the selecting official. The HRG explained that Complainant was not referred because
“he did not do well on his interview.”

A copy of the Field Recruiter duties and responsibilities emphasizes duties related to conducting
applicant interviews and providing guidance on hiring practices.

The record includes copies of the selectees’ application responses indicating that they both had
extensive experience and training with interviewing and hiring procedures.

The record includes a copy of the January 22, 2016 email from M2 to the field announcing the
selected candidates and their detail assignments.

The record also includes an April 6, 2016 email informing Complainant that the review
committed “made a careful review of [Complainant’s] qualifications, among those of other
applications,” but determined that Complainant was not among those recommended to the
selecting official.

Regarding claim 3, M1 stated that the detail was rescinded and no notifications were sent.

All management officials stated that Complainant’s age was never a factor in their actions.

With respect to Complainant’s reprisal claim, the record contains a copy of Case Details for
Complainant’s prior EEO complaint, 4B-110-0011-16. The Case Details fails to indicate that the
management officials Complainant names in the instant complaint were the responsible
management officials in the prior complaint. We note that P1 and the HRG stated that they did
not become aware of Complainant’s prior complainant until August 2016 after receiving their
affidavits for the current complaint, and M1 stated that he did not become aware of
Complainant’s prior complaint until June 15, 2016, which was after the dates of the alleged
incidents.

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After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on his age or
reprisal for prior protected EEO activity.

Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.

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. 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).
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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

December 4, 2018
Date