Cassy W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

May 24, 2018

0120180976 (E.E.O.C. May. 24, 2018)

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

Cassy W.,1
Complainant,

v.

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

Appeal No. 0120180976

Hearing No. 430-2015-00424X

Agency No. 6X-000-0006-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated December 21, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Personnel
Processing Specialist, EAS-18, Human Resources Shared Service Center (HRSSC), Greensboro,
North Carolina. On March 28, 2015, Complainant filed her complaint alleging discrimination
based on race (Hispanic) and in reprisal for prior EEO activity when:

(1) On March 3, 2007, her promotion to EAS-17 was delayed until April 14, 2007;

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.
0120180976

2
(2) In April 2007, her pay increase related to her promotion to EAS-17 was not calculated the
same as that of her coworkers;
(3) On October 18, 2014, she was not selected to any of the four Supervisor, EAS-21,
positions at the HRSSC;
(4) On November 14, 2014, she was notified that she was not selected for a fifth Supervisor,
EAS-21, position at the HRSSC;
(5) In February 2015, her higher-level detail as Process Supervisor was terminated;
(6) On April 27, 2015, she was not given the opportunity to detail to her supervisor’s
position while she was absent; and

Complainant later amended her complaint alleging discrimination based on race (Hispanic) and
age (over 40) when:

(7) On May 29, 2015, she became aware that her prior higher-level detail as a Training
Specialist should not have been terminated after management showed a need for the
detail by posting it again.

On May 12, 2015, the Agency dismissed claims (1) - (3) for stating the same claim that had been
previously decided by the Agency and/or due to untimely EEO Counselor contact pursuant to 29
C.F.R. §§ 1614.107(a)(1) and/or .107(a)(2) and accepted claims (4) – (7) for investigation. Upon
completion of the investigation of the accepted claims, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 11, 2016, the Agency filed its Motion for a
Decision Without a Hearing. On March 21, 2016, Complainant filed a Response in Opposition
to the Agency’s motion. On November 13, 2017, the AJ issued a decision without holding a
hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.
Complainant appealed.

ANALYSIS AND FINDINGS

Regarding claims (1) and (2), the record indicates that on February 12, 2009, Complainant filed a
prior EEO complaint, Agency No. 6X-000-0007-09, alleging the same matters. In the prior
complaint, Complainant alleged among other claims that in April 2007, her EAS-17 promotion
was delayed and the Agency failed to correctly increase her pay in accordance with that
promotion. The record indicates that on March 9, 2009, the Agency dismissed the subject claims
concerning Complainant’s EAS-17 promotion and pay; an EEOC AJ found the Agency’s
dismissal of the subject claims proper and issued a decision without a hearing finding no
discrimination regarding the prior complaint; and on September 9, 2011, the Agency issued its
final order fully implementing the AJ’s decision. Upon Complainant’s appeal, the Commission,
in EEOC Appeal. 0120120123 (June 21, 2013), previously affirmed the Agency’s final order of
the prior complaint.
0120180976

3
Thus, we find that the Agency properly dismissed claims (1) and (2) for stating the same claims
that had previously decided by the Agency and/or the Commission. 29 C.F.R. § 1614.107(a)(1).2

Regarding claim (3), the record indicates that the incident occurred on October 18, 2014, but
Complainant did not contact an EEO Counselor until December 15, 2014. Complainant does not
present adequate justification to warrant an extension of the applicable time limit for contacting
an EEO Counselor regarding the matter. Thus, we find that the Agency properly dismissed
claim (3) due to untimely EEO Counselor contact. 29 C.F.R. § 1614.107(a)(2).

Turning to claims (4) – (7), 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.

In the instant case, the AJ adopted the facts provided in the Agency’s Motion for a Decision
Without a Hearing and Complainant’s Response in Opposition. The AJ, assuming arguendo that
Complainant had established a prima facie case of discrimination, determined that the Agency
articulated legitimate, nondiscriminatory reasons for its action.

At the relevant time, Complainant was employed as a Personnel Processing Specialist, EAS-18,
at HRSSC in Greensboro, North Carolina. Regarding claim (4), Complainant claimed that she
applied, via eCareer website, but was not selected for a fifth Supervisor EAS-21 position at issue.
Complainant indicated that she and fourteen other candidates were interviewed for the first four
vacant positions but she was not interviewed for the fifth vacant position; and management
instead opted to select the fifth position from the same package as the other four positions.

Specifically, M1 indicated that: Complainant and all finalists were interviewed by the panel of
four level 23 officials including him; initially four candidates were selected for the first four
positions; and the fifth position at issue was filled shortly afterward and chosen from the same
pool of candidates based on the same interview results.

2 Although the Agency also dismissed claim (1) due to untimely EEO Counselor, we need not
discuss those dismissal grounds since the dismissal is affirmed for the reasons set forth above.
0120180976

4
A candidate (Black, unknown EEO activity), a Personnel Processing Specialist, EAS-18, at
HRSSC, who received one of the top five rankings from the interview, was selected for the
position.

M1 indicated that all candidates were asked the same seven questions concerning motivation,
policy, business decisions, dispute resolution, problem solving, teamwork, and schedule
flexibility. M1 stated that the interview panelists were looking for answers from a leadership
perspective, but that Complainant answered the interview questions posed to her from a
Specialist’s point of view, and not a leadership perspective. M1 stated that Complainant later
told him that she was never given an opportunity to act in a supervisor’s position for an extended
period of time. The Selectee’s application indicates that he worked as an Acting Supervisor for
Retirement Department for 17 months and performed supervisory duties including administering
performance evaluations for career and temporary employees and interviewing/training new
employees. Complainant claimed that she was more qualified for the position at issue because at
the relevant time, she had approximately 21 years of experience at Agency HR. However, we
note that extensive years of HR experience within the Agency was not required for the position.
Upon review, we find that Complainant failed to show that her qualifications for the position
were plainly superior to the Selectee’s qualifications. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995).

Regarding claim (5), M1 stated that Complainant was originally detailed to the Process
Supervisor position at issue on loan to his unit for a two-week term on January 26, 2015, to
February 6, 2015, but he extended the detail for an additional two weeks up until February 21,
2015. Complainant acknowledged this. M1 stated that he decided to terminate Complainant’s
detail because the person backfilling that position had to return to that same position.
Complainant claimed that her immediate supervisor (S1) was responsible for the termination of
her detail. S1 denied responsibility for the termination of the detail.

Regarding claim (6), S1 indicated that at the relevant time, an employee, a Personnel Processing
Specialist, Hispanic, unknown EEO activity, was detailed to S1’s position for five days from
April 27, 2015, through May 3, 2015, while S1 was on annual leave based on that employee’s
prior work history and qualifications. S1 stated that Complainant was previously given an
extended detail assignment as Training Specialist from May 17, 2014, through November 14,
2014, and as a Supervisor HRSSC from December 22, 2014, through January 2, 2015.
Complainant does not dispute this. S1 denied the incident was based on discrimination as
Complainant alleged.

Regarding claim (7), S1 indicated that Complainant was originally assigned to the Training
Specialist’s detail at issue for the period of May 17 – August 29, 2014, which was extended three
times, i.e., once to September 20, 2014, the second to October 28, 2014, and the third to
November 14, 2014 (approximately six months). Complainant does not dispute this. S1 stated
that Complainant was returned after the long three-extension detail to perform her position duties
that the Agency needed her to complete. S1 stated that Complainant was then again assigned to
a higher-level detail to a Supervisor, EAS-21 position for the period of December 22, 2014, to
0120180976

5
January 2, 2015, and another Supervisor, EAS-21 position for the period of January 26 –
February 20, 2015.

The Acting HRSSC Support Manager indicated that on May 29, 2015, the Training Specialist
detail position at issue was posted because the original Training Specialist went out on extended
sick leave. Complainant acknowledged that she did not apply for this posting.

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 facts provided by the
parties. Upon review, the AJ found and we agree that there is no evidence that the Agency’s
articulated reasons were untrue or otherwise indicative of pretext. Furthermore, we find that
Complainant failed to show that there were any similarly situated employees not in her protected
groups who were treated differently under similar circumstances. 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 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;
0120180976

6
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.

0120180976

7
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

May 24, 2018
Date