Adriene B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

2019002226 (E.E.O.C. Aug. 21, 2019)

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

Adriene B.,1
Complainant,

v.

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

Appeal No. 2019002226

Hearing No. 443201800154X

Agency No. 1J531005517

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 31, 2018 Final Agency
Decision (“FAD”) concerning an 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

Throughout the relevant time frame for this complaint, Complainant worked as a Mail Handler,
PS-04, at the Agency’s Milwaukee Processing and Distribution Center ("P&DC") in Milwaukee,
Wisconsin.2

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 Effective March 17, 2018, Complainant was promoted to the position of Supervisor,
Distribution Operations, EAS-17, at the San Antonio P&DC, in San Antonio, Texas.
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On February 27, 2018, Complainant filed an EEO complaint alleging that she was subjected to
discrimination by the Agency on the bases of race (African-American), sex (female) and age (59)
when, from March 21, 2017, and ongoing, she was denied a supervisor position.

The evidence developed during the investigation of the complaint shows that Complainant
applied for multiple Supervisor, Distribution Operations, EAS-17, (“SDO”) positions online, and
during the relevant time frame, interviewed for three SDO Positions.

The Manager, Distribution Operations, EAS-24, at the Mail Processing Annex in Oak Creek,
Wisconsin (“M1”) (male, white, 53) conducted the interviews for each opening. Candidates were
assessed based on knowledge, skills, and abilities (“KSA”) specific to the position, which were
scored numerically based on the application package. Candidates were ranked using KSA
scoring matrixes or, alternately, “Requirement by Applicant” matrixes. However, M1 testified
that he considered KSAs as “informational to get background on a candidate… [whereas his]
review and the interview were the key component” as the basis for his selection.

In January 2017, Complainant applied online for “Position 1” (Posting # NC10079287,
Requisition No. NB10085818), an SDO opening located at the Milwaukee Priority Annex in Oak
Creek, Wisconsin. M1 created the KSA matrixes for each candidate based on their application
package, and interviewed all of the qualified applicants (8 including Complainant). Based on
M1’s KSA scoring matrix, Complainant scored 22 points, third highest among the applicants.
The Selectee (“S1”) (male, black, 27) received the highest score, 26 points. M1 was the selecting
official, with the Senior Manager, Distribution Operations, EAS-25, at the Milwaukee P&DC
(“M2”) (male, Caucasian, 57) as the concurring official.

In August 2017, Complainant applied online for “Position 2” (Posting # 10129037, Requisition
No. NC1019495) at the Milwaukee Priority Annex. In this instance, a Review Committee scored
the application packages and forwarded the KSA scoring matrixes to M1 for consideration. The
Review Committee consisted of an Acting Lead Manager, EAS-24, at the Milwaukee P&DC
(“M3”) (male, Hispanic, 47) Manager, Transportation and Networks, EAS-23, at the Milwaukee
P&DC (“M4”) (male, white, 54).

The Requirement by Applicant Matrix, signed by both M3 and M4 shows 11 applicants. Three
of the candidates received zero points. the highest scoring candidate received an 11. Four
candidates, including Complainant and the Selectee (“S2” female, black, 51), received a score of
8 (1 point per “requirement”). M1 testified that he selected S2 because she was the “better
candidate.” M3 was the concurring official, as M2 was on detail.

In October 2017, Complainant applied online for “Position 3” Milwaukee P&DC (Posting #
NC95568823, Requisition No. NB1015461), located at the Milwaukee P&DC. A Review
Committee consisting of M4, and two other Management officials (information not included in
the record) ranked Complainant as tied for fourth place out of 14 candidates.
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However, the Selectee (“S3”) (male, black, 50) was placed in the position through the Agency’s
non-competitive lateral reassignment process. M1 was the selecting official, with M2 as the
concurring official.

Based on the evidence developed during the investigation, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b), concluding 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, (“EEO MD-110”) 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 based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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.
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U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v.
Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

For all three SDO Positions at issue, Complainant argues that she was more qualified than the
selectees based on her excellent performance during the interview, and because of her work
experience. Specifically, Complainant had completed multiple 204B supervisory details,
providing her with a combined total of 3 years of experience in the SDO, EAS-17, position. She
also alleges that she has more on the job and years of experience working for the Agency.

As the employer, the Agency has broad discretion to carry out personnel decisions and should
not be second-guessed by the reviewing authority absent evidence of unlawful motivation.
Burdine, 450 U.S. at 259; Stiles v. Dep't of Transportation, EEOC Request No. 05910577 (Jun.
27, 1991) (in the absence of plainly superior qualifications belonging to complainant to compel a
finding of pretext, the Commission will not second guess the agency's personnel decisions). an
employer has the discretion to choose among equally qualified candidates. Furthermore,
employers have greater discretion when choosing management level employees. Wrenn v.
Gould, 808 F.2d 493, 502 (6th Cir. 1987).

For both Positions 1 and 2, the Agency’s legitimate nondiscriminatory reason for selecting S1
and S2 over Complainant were that M1 felt they were “better” candidates, and interviewed better
than Complainant, who he describes as “minimally qualified.” M1 does not elaborate or provide
interview notes, and he was the only individual to interview the candidates. As concurring
officials, M2 and M3 simply reiterate the scoring matrixes on record. For Position 3, the
Agency’s legitimate nondiscriminatory reason for selecting S3 over Complainant, was that M1
and M2 acted in accordance with Agency policy by filling the position through a noncompetitive
lateral transfer.

In nonselection cases, pretext may be found where the complainant's qualifications are
demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
However, an employer has the discretion to choose among equally qualified candidates. Canham
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Additionally, an employer has greater
discretion when filling management level or specialized positions. Wrenn v. Gould, 808 F.2d
493, 502 (6th Cir. 1987).

We find no persuasive evidence that complainant's qualifications are “plainly” or
“demonstrably” superior to those of the selectees.’ Complainant’s KSA and Requirements
matrixes show that she tied with or scored lower than the selectees. Also, unlike S3, Complainant
was not yet EAS-17, so she lacked the eligibility for a noncompetitive lateral transfer. We note
that a person’s length of experience does not necessarily mean she is better qualified. See
Macready v. Dep’t of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002).

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The application packages for S1 and S2, even when considering Complainant’s proffered
superior metrics, demonstrate that both candidates had EAS-17 level experience, and substantial
experience working at the Agency. S1 was already working at the EAS-17 level as a Postal
Representative in Cudahy, Wisconsin, and held an Assistant SDO 204b detail several years
earlier. S1 had been working for the Agency for at least 7 years, including several as a Mail
Processing Clerk at the Milwaukee Annex. S2 had worked for the Agency for 18 years, and been
working as an SDO at Milwaukee P&DC since 2015. She served a three month detail at the
Annex less than a year earlier as Acting MDO, an EAS-20 position.

Personnel records support that S3 was an SDO, EAS-17 at the West Valley, Arizona P&DC for a
year before requesting noncompetitive transfer to the Milwaukee P&DC. As S3 was already
employed by the Agency in an equivalent SDO position, making him eligible for consideration
under the Employee and Labor Relations Manual (“ELM”). The ELM provides that
“Management may consider [requests from] qualified employees eligible for a noncompetitive
voluntary lateral reassignment” for open positions. The Human Resources Generalist Principal,
EAS-21, (“HR”) for the Agency’s Great Lakes District testified that Position 3 was filled
through non-competitive lateral transfer in accordance with Agency policy.

Although the proffered legitimate nondiscriminatory reasons for selecting S1 and S2 are
generalized responses, subjective to M1, Complainant has not shown that discriminatory motive
factored into the decision-making process. Likewise, Complainant offers no evidence to refute
the documentation offered by the Agency, establishing that S3 was transferred in accordance
with its non-competitive lateral transfer policy. Therefore, we will not substitute our judgment
for that of the selecting officials.

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 (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.
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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).

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.
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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

August 21, 2019
Date