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

Equal Employment Opportunity Commission

Sep 9, 2020

2019003971 (E.E.O.C. Sep. 9, 2020)

U.S. trEQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belinda K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019003971 Hearing No. 430-2016-00117X Agency No. 4K-280-0068-15 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 18, 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 was an applicant for employment at the Agency. The record indicates that Complainant was a former Agency employee. She worked as a Rural Carrier Associate (RCA) at the Chester Post Office from August 2004 to October 2013, at which time she resigned. On January 23, 2015, two RCA positions at the Chester Post Office opened. Complainant applied for the position but was not selected. Complainant claimed that she had many years of work experience as RCA and she should have been selected to 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. 2019003971 2 On July 24, 2015, Complainant filed her complaint alleging discrimination based on race (Black) and age (over 40) when on March 13, 2015, she was notified that she was not selected for the RCA position at the Chester Post Office in South Carolina. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 8, 2016, the Agency filed Agency’s Motion for a Decision Without a Hearing and Complainant filed her opposition. On April 12, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. On appeal, Complainant notes she previously worked as an RCA with the Chester Post Office from September 2004 through October 2013, when she chose to resign. Complainant indicates that she was commended on her work performance on several occasions in 2006. Complainant notes the Agency chose Selectee 1 (SE1) and Selectee 2 (SE1) for having the better test scores and better interviews. However, she states SE1 had never worked for the Agency and had previously had a car accident. She also notes that SE2 only had three months prior experience at another Post Office and had been fired from that other Post Office. 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. 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). 2019003971 3 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). The record indicates that the RCA position at issue was a non-career position serving as relief to career Rural Carriers who delivered mail on a regular rural route. Applicants for the position were required to take the examination which tested them on important job skills. The Hiring List dated February 20, 2015, for the position at issue reflects that Complainant received the score of 73.30 for the subject examination which was the second to the lowest test score of 24 applicants. The test scores ranged from 72.30 to 84.50 (lowest to highest). In March 2015, the Selecting Official (SO), assisted by the Supervisor Customer Service, interviewed ten candidates who received the test score 78.30 or above. No one who received the test score of 78.20 or lower received an interview except Complainant. The SO indicated that although Complainant’s test score was low, he decided to interview her because at that time, he was not sure if she was entitled to a 10-point widow’s veteran’s preference which would have given her 10 additional points. The record indicates that on April 2, 2015, Agency’s Human Resources office informed Complainant that she did not qualify for widow’s veteran’s preference. The SO stated that after the interview, he selected two selectees (SE1, test score of 81.30 and SE2, test score of 80.60), White, younger than Complainant. The SO indicated that both SE1 and SE2 performed well at their interview regarding their time and attendance; task and assignment completion; and other job-related questions. The SO stated that SE1 spoke very well during her interview and SE2 appeared ready and eager to learn and exhibited the potential to excel. The SO stated that Complainant did not do well during her interview. Complainant’s responses to his questions were “vague” and “questionable.” The SO also indicated that Complainant’s demeanor was at times combative and she projected a sense of entitlement. 2019003971 4 The SO indicated he also considered candidates’ previous work references prior to the interview. Regarding SE1, the SO indicated that although she never worked for the Agency, SE1’s then supervisor recommended her highly in that she was an excellent employee with a pleasant disposition. SE1’s application indicates that at the time of the application she worked two full time jobs as an attendance clerk/receptionist at Chester County School District and as a clerk at a retail store. The SO noted that SE1 was voted Administrative Assistant of the Year at her current job and she spoke very well during her interview. Regarding SE2, the SO stated that she previously worked at the Fort Mill Post Office, South Carolina, as a City Carrier Assistant (CCA) from April 2013 to July 2013, at which time she was terminated. Thereafter, she also had a car accident in which she was at fault. The SO stated that he talked with SE2’s former Post Office supervisor who recommended SE2 for the RCA position at issue even though SE2 was terminated from her prior CCA position. The former supervisor told the SO that the CCA position was not a good fit for SE2 because the physical demands of the extensive walking caused SE2 difficulty in delivering the mail timely. The former supervisor also told the SO that driving a Postal Long-Life Vehicle in the CCA position caused difficulties for SE2, whereas these difficulties would not exist in the RCA position because SE2 would be driving her own personal car as RCAs used their personal vehicles to deliver the mail. The former supervisor told the SO that the RCA position would be a better fit for SE2 and SE2 would perform well in that position. Regarding Complainant, the SO indicated that he was familiar with her previous work performance. He was her Postmaster when she worked in the Chester Post Office in 2013, before she retired. The SO stated that Complainant was not reliable and had difficulty adapting to Postal needs when, on different occasions, she resisted her supervisor’s request to assist other mail carriers deliver mail. The SO indicated Complainant was consistently one of the last mail carriers to leave the office in the morning to deliver mail and one of the last mail carriers to return to the office after delivering mail. On appeal, Complainant indicates that she was commended on her work performance on several occasions in 2006. She however does not proffer any evidence to show her performance was commendable in any other years or in 2013 while the SO was her Postmaster. Upon review, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting her for the position. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to SE1 and SE2’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). The record clearly indicates that Complainant’s test score was much lower than both SE1 and SE2. She also does not provide any evidence to show that her performance before she resigned from her RCA position in 2013, other than in 2006, was commendable. There is no evidence that prior RCA work experience was required for the subject RCA position. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. 2019003971 5 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. 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. 2019003971 6 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 September 9, 2020 Date