Clora D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120172000 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clora D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120172000 Agency No. 4B060012516 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 14, 2017, final decision 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 final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services, EAS-17, at the Agency’s Post Office in Greenwich, Connecticut. On October 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and age (48) when: 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. 0120172000 2 1. on June 22, 2016, the Agency notified Complainant that she was not recommended to the selecting official, and therefore, the Agency did not select Complainant for the position of Supervisor, Customer Services on Posting No. 10020867; 2. on June 27, 2016, the Agency issued Complainant a Letter of Warning; and 3. on October 8, 2016, the Agency issued Complainant a Letter of Warning. At the time of the events at issue, Complainant had worked with the Agency for 12 years in a variety of capacities. On May 10, 2016, the Agency advertised a vacant Supervisor, Customer Services, EAS-17, position at the Greenwich Post Office in Job Posting No. 10020867. The posting period was May 10, 2016 through May 25, 2016. The posting stated that “employees at the same or higher grade level interested in placement into this position may make a written request directly to the Selecting Official for consideration noncompetitively outside eCareer, and are encouraged to include a copy of their eCareer profile along with the request.” The posting provided that, if a competitive selection was not made, then noncompetitive candidates would be considered if they applied via eCareer. Complainant stated that she sought a lateral transfer into the position on May 10, 2016, by verbally indicating her interest in the position to her immediate supervisor (S1). S1 told her that she needed to email her application to the Officer in Charge in Stamford, Connecticut (OIC). Complainant asserted that OIC informed her that the position would be competitively filled, and that she needed to submit an application via eCareer on the Agency’s website. Complainant applied for the position through eCareer on or around May 23, 2016. Complainant later discovered that she was not referred for an interview, and consequently, was not selected because her eCareer application was not filled out correctly. A review of Complainant’s eCareer application reveals that the portion of her application that responds to the Agency’s Knowledge, Skills, and Abilities (KSA) questions was cut off. Management formed a committee of three employees to review the applications it received via eCareer (E1, E2, and E3). E1 stated that his “instructions were to select two to three candidates based on the highest matrix scores.” E1 added that the two candidates selected by the committee filled out and responded to all nine KSAs on the application, whereas Complainant responded to only six KSAs. Complainant’s failure to complete all KSAs automatically disqualified her from further consideration. E2 and E3 provided similar reasons why Complainant was not selected for an interview. OIC confirmed that, as the selecting official for this position, he did not interview Complainant because she “scored some zeros on subjects which eliminated her from the package.” The two candidates, including the selectee, who received the highest scores on the scoring matrix were interviewed. On June 23, 2016, Complainant emailed the OIC stating that she was attaching the information that she submitted on eCareer. OIC acknowledged receiving the email, but informed Complainant that it was too late and she could not be considered. 0120172000 3 Complainant believed that her email to the OIC should have been considered as her application, and that if her eCareer application was defective, someone should have told her that. Complainant argued that she was subjected to discrimination because her qualifications were observably superior to that of the selectee’s. Complainant later alleged that the Agency engaged in nepotism because the selectee’s father was a long-time Postmaster with the Agency. As a result of her unsuccessful application, Complainant believed that S1 felt empowered to harass and belittle Complainant, and issue Complainant the Letters of Warning (LOW) identified in claims (2) and (3). The LOW in claim (2) stated that Complainant failed to properly follow the standard operating procedure for “manual CPMS verification” and failed to properly handle 3M mail. The LOW was later rescinded and reduced to a discussion. The LOW raised in claim (3) stated that Complainant “left eight Amazon same day packages and two First class/Priority packages without proper scan.” Complainant contended that the charges therein were not true and that she followed all directives. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency found Complainant did not demonstrate she was discriminated against as alleged in claim (1) because the Agency articulated legitimate nondiscriminatory reasons for its selection. Specifically, Complainant was not selected for an interview because her eCareer application did not answer all of the KSAs, while the selectee provided a complete application. As to claim (2), the Agency concluded that Complainant was not subjected to an adverse action because the LOW was rescinded. As to claim (3), the Agency accepted S2’s explanation for issuing the LOW. The Agency further concluded that Complainant did not demonstrate she was subjected to discriminatory harassment because she could not establish that the Agency’s conduct was based on her age or sex. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant first argues that the Agency did not explain the selectee’s selection and that the selectee had far less experience than Complainant. Next, Complainant argues that her qualifications were demonstrably superior to the selectee, and the selectee was not equally qualified. Complainant also argues that the Agency did not follow its regulations in selecting the selectee. Accordingly, Complainant requests that the Commission reverse the final decision. 0120172000 4 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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 To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. 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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31. 1990). Claim (1) As to claim (1), we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the OIC chose to go through the competitive process to fill the position. Once within the competitive process, the record demonstrates that an independent committee of three Agency employees determined that the eCareer applications by two candidates answered all of the KSAs while similar applications by five other candidates, including Complainant, did not. The committee advanced only the two candidates who completely responded to all seven KSAs. 0120172000 5 Therefore, Complainant was not selected for the position because she did not advance to the interview stage of the process due to an incomplete application. Complainant does not dispute that her eCareer application failed to answer all of the KSAs, but states that this failure resulted from a technical issue with the eCareer software and that others should have informed her that her application was not complete. Absent more, a technical issue does not demonstrate Complainant was subjected to unlawful employment discrimination. Complainant also argues that the Agency did not follow its regulations and allow her a noncompetitive transfer. We cannot agree. The applicable regulation states that the selecting official “may” grant a noncompetitive transfer. Nothing in the record or the Agency’s regulations suggest that the Agency was obligated to grant Complainant’s request. Further, we have repeatedly recognized that the agency generally has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Claims (2) and (3) Notwithstanding the Agency’s conclusion that the claim (2) LOW does not constitute an adverse action, we find that Complainant fails to rebut the Agency’s articulated reasons. In the claim (2) LOW, the Agency stated that Complainant failed to follow standard operating procedures and failed to properly handle the mail. In the Claim 3 LOW, Complainant “left 8 Amazon same day packages and 2 First class/Priority packages without proper scan.” At most, Complainant argues that both LOWs were not true. However, conclusory statements without more are not sufficient to demonstrate the Agency’s actions were pretext for discriminatory animus. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose to not request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant’s protected classes were a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. Hostile Work Environment 0120172000 6 Complainant also alleges she was subjected to unlawful harassment. To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or should have known of the alleged harassment, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her sex and age, management officials subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be discriminatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency’s actions as discussed above. Accordingly, we cannot find that Complainant was subjected to discriminatory harassment. 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. 0120172000 7 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. 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. 0120172000 8 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation