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

Equal Employment Opportunity Commission

Jun 20, 2019

0120181330 (E.E.O.C. Jun. 20, 2019)

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

Brendon L.,1
Complainant,

v.

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

Appeal No. 0120181330

Hearing No. 430-2015-00026X

Agency No. 1K-271-0021-14

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 February 1,
2018, final order 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 an Electronic Technician, ET-10, at the
Agency’s Greensboro Processing and Distribution Center in Greensboro, North Carolina.

On June 2, 2014, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on race (Asian), national origin (Vietnamese), sex (male), color

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.
0120181330

2
(light complexion), and age (YOB: 1972) when, on April 19, 2014, Complainant was not
selected for a Supervisor, Maintenance Operations position.2

After the investigation, 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 request a final decision within thirty days of receipt of the correspondence. Complainant
timely requested a hearing.

The AJ held a hearing on November 29, 2017. The AJ heard testimony from four witnesses,
including Complainant. In a decision dated January 10, 2018, the AJ found no discrimination.

On February 1, 2018, the Agency subsequently issued a final order adopting the AJ’s decision
finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

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 a complainant to prevail,
he 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.

2 The record indicates that the Agency posted three Supervisor, Maintenance Operations vacancy
announcements (Posting 75795116 – Requisition 75555787, Tour 2 – off days Fri./Sat.; Posting
75794303 – Requisition 75555511, Tour 2 – off days Tues./Wed.; and Posting 75794746 –
Requisition 7555524, Tour 3 – off days Tue./Wed.) and Complainant was not selected for any
position.
0120181330

3
See 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).

We find that the AJ properly determined that Management provided legitimate non-
discriminatory reasons for not selecting Complainant for the vacancy Supervisor Maintenance
Operations position.

During the hearing, Complainant withdrew all claims that he was subjected to discrimination
when he was not selected for job postings 75795116 and 75794303. Therefore, Complainant
only contested his non-selection for posting 75794746.

Posting 75794746 – Requisition 7555524, Tour 3 – off days Tue./Wed.

The Manager of Maintenance Operations (“MMO”) testified that he was the initial selecting
official for posting 75794746. MMO further testified that he considered the knowledge, skills,
and abilities (“KSAs”) for the position and compared these factors with the information the six
candidates provided about their work experience and education for each KSA. MMO explained
that he also considered each applicant’s interview responses to determine the best candidate for
the position. MMO determined that the candidate he selected (“Selectee 1”) (Caucasian male)
was the best qualified because he showed “maturity,” he had some supervising experience, and
“he had more technical background experience at the post office and postal experience.”
However, MMO explained that the Lead Manager of Maintenance Operations did not concur
with his recommendation. Consequently, the Lead Manager appointed another manager
(MMO2) to serve as the selecting official who, in turn, selected another candidate (“Selectee 2”)
(Asian Indian female) for the position.

The record indicates that Complainant and the Agency stipulated during the hearing that MMO
ranked Selectee 1 - 16 points, Complainant - 15 points, and Selectee 2 - 15 points, as the three
highest ranked candidates for posting 75794746.
0120181330

4
The record further indicates that Complainant and the Agency stipulated during the hearing that
MM02 ranked Selectee 2 - 17 points, Selectee 1 - 15 points, and Complainant - 14 points, as the
three highest ranked candidates for posting 75794746.

After the selection, Selectee 1 filed an EEO complaint alleging he had been discriminated against
when his selection was overturned and he was replaced with Selectee 2. In that case, the Agency
conceded liability stipulating Selectee 1 was the best qualified candidate for the position and
should have been selected. Selectee 1 was retroactively placed in the position for job posting
75794746.

We note, however, that this determination that discrimination played a role in the selection
process (because Selectee 1 was the best qualified candidate but not chosen) does not alter the
outcome of the instant claim. Complainant was not ranked with the highest score by MMO.
MMO did not consider Complainant the most highly qualified candidate, and the AJ determined,
after the hearing, that MMO offered credible testimony on his evaluation of all the candidates
and his ultimate decision to give Selectee 1 the highest ranking. We find no reason to disturb the
AJ’s credibility determination with respect to this matter. Accordingly, there is no evidence in
the record that Complainant would have received the highest ranking even in the absence of the
discrimination against Selectee 1.

After careful consideration of the record, we conclude that neither during the investigation nor at
the hearing has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for not selecting Complainant were a pretext for unlawful discrimination.

CONCLUSION

We AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination.

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.

0120181330

5

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.
0120181330

6
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 20, 2019
Date