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

Equal Employment Opportunity Commission

Jul 26, 2016

0120142242 (E.E.O.C. Jul. 26, 2016)

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

Christeen H.,1
Complainant,

v.

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

Appeal No. 0120142242

Hearing No. 520-2013-00384X

Agency No. 4B-105-0039-12

DECISION

On June 3, 2014, Complainant filed an appeal from the Agency’s May 1, 2014, notice of final
action concerning her 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. For the following reasons, the Commission AFFIRMS
the Agency’s notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as the Postmaster of
the West Hurley Post Office in New York. From January 4, 2012, through July 4, 2012,
Complainant served as the Officer in Charge at the Port Ewen Post Office. During the
relevant time, Person A served as the Manager, Post Office Operations for the Westchester
District. Person A’s responsibilities included supervision of the Port Ewen Post Office.

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.
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In September 2011, Complainant requested a lateral reassignment to the Port Ewen Post
Office. Complainant’s request for a lateral transfer was denied by Person A, but she was
advised that she could apply for the position competitively.

From May 25, 2012, to June 1, 2012, the Agency posted Vacancy Announcement 65545804
for the position of Postmaster, EAS-18, at the Port Ewen Post Office in New York. Eighteen
applicants, including Complainant, applied for the position. Person A served as the Review
Committee Chairperson for the vacancy. Person A, Postmaster B, and Postmaster C were part
of a three-member panel who interviewed the applicants and assigned numerical scores to each
applicant. The panel forwarded the top five applicants to the Selecting Official for further
consideration. Complainant was not one of the top five applicants and her name was not
forwarded to the Selecting Official for consideration.

On November 5, 2012, Complainant filed an EEO complaint alleging that the Agency
subjected her to unlawful employment discrimination. The Agency defined Complainant’s
complaint as alleging that she was subjected to discrimination on the bases of sex (female) and
age (over 40) when: On July 17, 2012, Complainant became aware that she was not selected
for the position of Postmaster EAS-18 at the Port Ewen Post Office.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing.

On March 28, 2014, the AJ conducted a preliminary hearing (telephonic) with the parties to
consider, inter alia, the identification of issues. No witness testimony was admitted at the
preliminary hearing and both parties were provided with a copy of the court reporter’s
transcript.

On April 14, 2014, over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing. The AJ noted that at the preliminary
hearing, the parties did not agree to the proper identification of the issue to be decided. The
AJ determined that in her complaint, Complainant was alleging that she was discriminated
against on the basis of sex and age when she was not granted a lateral position in September
2011. The AJ noted the Agency moved to dismiss this claim on the grounds of untimely EEO
Counselor contact. The AJ noted Complainant explained that she failed to initiate the EEO
process in a timely manner “[be]cause she was getting indications that she just had to go
through the motion of the [vacancy] posting … [so] then she thought, okay, they [management]
are going to post, and I will get the position at that point.” However, the AJ stated
Complainant did not describe or otherwise aver that Person A specifically made any statements
or implied promises that she would simply need to go through the motions of a competitive
selection process to receive the position at issue. In addition, the AJ found that Complainant
had suspicions or belief that illegal discrimination occurred in September 2011, when she was
denied a transfer to the position at issue and thus, she should have initiated EEO Counselor
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contact within the prescribed time-frame. Further, the AJ noted that: the denied transfer
request was a discrete act; the responsible management official advised Complainant in
advance that the position was going to be posted; and Complainant identified a comparative
who had requested and received a lateral transfer at the identical point in time (September
2011). Thus, the AJ dismissed the issue of the lateral transfer denied in September 2011, as
untimely raised with an EEO Counselor.

The AJ also considered Complainant’s claim that she was not selected for the position of
Postmaster EAS-18 at the Port Ewen Post Office. The AJ found Complainant established a
prima facie case of discrimination on the bases of sex and age in that Complainant applied and
was qualified for the position, Complainant was not selected, and the Selectee was an
individual from outside the identified protected groups.

The AJ also found that the Agency articulated a legitimate reason for not selecting
Complainant for the position at issue. The AJ noted that the affidavits and documentation of
record involving the three-member interview panel show that based upon the interview
responses covering knowledge, skills, and abilities, only the five top-rated applicants were
forwarded to the Selecting Official for further consideration. The AJ found Complainant failed
to show that the Agency’s reasons were a pretext for discrimination.

The Agency subsequently issued a notice of final action on May 1, 2014. The Agency’s notice
of final action fully implemented the AJ’s finding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

On appeal, Complainant notes that she asked the Agency for a list of laterals that Person A
granted and was told that she should have contacted the AJ stating that she never received that
information. Complainant claims despite this, the AJ allowed the Agency to testify what the
list would have contained.

With regard to timeliness, Complainant states that in the Westchester District it was not
unusual for a position to be posted and just before the interviews, a lateral be granted.
Complainant also claims that she had every reason to believe the lateral would ultimately be
granted to her, so she argues she was not untimely.

Finally, Complainant notes that although the Agency states that Person A did not participate in
the final selection process, in fact “3 Managers of Post Office Operations sat in a room
together in the selection process.”

In response to Complainant’s appeal, the Agency notes the three issues raised by Complainant
on appeal were also raised in her response to the Agency’s Motion for a Decision without a
Hearing. The Agency states Complainant fails to establish that there are any material facts in
dispute. With regard to Complainant’s contention that the AJ allowed the Agency to testify
regarding the contents of laterals granted by Person A, the Agency states Complainant ignores
the record. The Agency notes that the preliminary hearing transcript reveals that the AJ stated
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no less than four times that the only evidence that would be considered was what was included
in the record, and that no testimony would be admitted during the preliminary hearing.
Further, the Agency claims that an untimely discovery request is not a reason to reopen
discovery or proceed to a hearing. The Agency notes that Complainant’s assertion regarding a
request for documents that was made on March 6, 2014, was outside the 90-day timeframe for
discovery that began in September 2013. With regard to the preliminary hearing, the Agency
noted the AJ simply asked for clarification on the matter, which the Agency provided.

The Agency notes Complainant contends that she was discriminated against in September
2011, when she requested a lateral transfer and argues the job never should have gone up for
bid in May 2012, but that she did not find out she was discriminated against until July 2012,
when a different candidate was selected. The Agency states that with regard to Complainant’s
claim that she was denied a lateral transfer in 2011, this claim was untimely since she was
aware that she was not to be granted the lateral transfer and was told she would have to apply
competitively for the position.

With regard to the claim that she was not selected for the position when she applied
competitively, the Agency states Complainant fails to establish or provide any evidence that
Person A orchestrated the process so that she would not be selected. The Agency argues
Complainant failed to put forward any information that could allow the Commission to
conclude that she was not selected for the position for any reason other than she was not the
best applicant.

In addition, the Agency notes that Complainant contests Person A’s role in the final selection
process; however, it argues she failed to offer support for this other than her own assertion that
the Managers of Post Office Operations “sat in a room together in the selection process.” In
addition, the Agency states Complainant failed to offer any evidence that it was not Person D
who was the Selecting Official.

ANALYSIS AND FINDINGS

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and that
there are no disputes of material fact. We note that Complainant does not challenge the
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definition of the issues in her complaint on appeal. Moreover, we find there was no showing
that conducting a preliminary hearing constituted an abuse of discretion by the AJ. With
regard to Complainant’s contention that the AJ improperly allowed the Agency to testify
regarding the contents of the laterals granted by Person A, the record shows that the AJ did not
admit any witness testimony at the preliminary hearing.

With regard to Complainant’s claim that she was subjected to discrimination when she was
denied a lateral reassignment in September 2011, we find the Agency properly dismissed this
claim for untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2). With
regard to Complainant’s claim that she was subjected to discrimination when she was not
selected for the position of Postmaster for the Port Ewen Post Office, we find the Agency
articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that based
upon interview responses covering knowledge, skills, and abilities relating to the position at
issue, only the five top-rated applicants were forwarded to the Selecting Official for further
consideration and that did not include Complainant. Complainant failed to prove that the
Agency’s actions were a pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s notice of final action is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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
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received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. 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. 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

July 26, 2016
Date