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

Equal Employment Opportunity Commission

Jun 29, 2018

0120161649 (E.E.O.C. Jun. 29, 2018)

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

Darrin F.,1
Complainant,

v.

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

Appeal No. 0120161649

Agency No. 6X-000-0044-15

DECISION

On April 21, 2016, 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
March 7, 2016, final decision concerning his 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 was a retired Distribution Clerk
and an attendee at the Skills Enhancement training session, the passing of which is a condition
precedent to being given work as a contract Equal Opportunity Investigator with the National
EEO Investigative Services Office (NEEOISO) in Tampa, Florida.

Previously, Complainant had filed an EEO complaint against NEEOISO on August 12, 2012,
which was subsequently settled on March 14, 2014. Per the settlement agreement, the Agency
agreed “[C]omplainant would be permitted to attend the next Skills Enhancement Training
session after March 2014, and that he would be subjected to the same terms, conditions, and

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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prerequisites for undergoing the training as if a Selection Committee had selected him for the
training session.”

Complainant attended the Skills Enhancement Training session that was conducted from June 8
through June 12, 2015 (Monday through Friday). On June 10, 2015, Manager, EEO Services
(Person A) and EEO Services Analyst (Person B) had a discussion with Complainant during
which they advised him that based on the homework assignment given on June 9, 2015, which
was due on June 10, 2015, he would not complete the Skills Enhancement Training.
Complainant disagreed with their assessment, as he felt he should have received a passing grade
on the homework assignment for which he received a zero. Complainant noted that he
participated in class during the week, passed the quizzes, and completed the homework
assignments. He stated that prior to June 10, 2015, he had not been told he was not doing well in
the class, or that he needed to improve his performance in order to pass the training.
Complainant stated he was told he failed the class when there were still two and a half days
remaining in the training and as a consequence he felt that NEEOISO had predetermined his
failure. Complainant also stated that he was not given the opportunity to withdraw from the
class prior to being told he was going to fail.

On October 14, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of age (73) and in reprisal for prior protected EEO
activity when:

On June 10, 2015, he was advised that he had failed the Skills Enhancement training
prerequisite for potential contract EEO investigators.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

In its final decision, the Agency determined Complainant had not established a prima facie case
of age or retaliation discrimination. Alternatively, the Agency found that assuming he had
established a prima facie case of discrimination based on age and/or reprisal, management has
articulated a legitimate, nondiscriminatory explanation for its actions.

The Agency noted that Person A stated that the Investigator Skills Enhancement Class utilized
presentations, exercises, quizzes, and discussions concerning NEEOISO’s standardized approach
to EEO investigations. Person A explained there was a quiz at the end of each day focusing on
the topics discussed and practiced throughout that day. Person A stated applicants were required
to obtain a cumulative score of 75% or better to pass. Person A stated Complainant had been
actively engaged in the classroom setting, and that he scored 80%, 55%, 58%, and 84% on the
quizzes he took. Person A stated that Complainant scored 90%, 10%, 70%, and 0% on the
homework submitted.
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She explained that Complainant did not turn in the final assignment, which would have
constituted 50% of his final grade. Person A noted that when Complainant scored 0% on the
homework due Wednesday morning, it was no longer possible for him to pass the course. Person
A stated that all participants in the Skills Enhancement Training session were given the same
training and instruction and received the same type of feedback on the homework assignments
and quizzes. She noted that there was one other student who also failed the course when he did
not achieve the required 75% or greater score.

The Agency noted that Person B confirmed that all attendees of the June 8 through 12, 2015
Skills Enhancement training session were advised that they needed a score of 75% or higher to
pass the class. Person B stated that Complainant appeared to participate actively in class during
the training, but he did not score high enough to achieve the required 75% to pass. She noted
that Complainant’s homework scores were: Monday - 90%; Tuesday – 10%; Wednesday 70%
and 0% (two homework assignments on Wednesday), and Thursday – 0%. Person B noted
Complainant’s other scores were: Monday assessment – 62%; Monday test – 80%; Tuesday test
– 55%; Wednesday test – 58%; and Thursday test – 84%. Person B noted that Complainant
received a zero on the homework assignment in question because he did not follow the
instructions of the assignment at all and instead turned in information that was previously
provided to him. She stated that Complainant was supposed to have prepared affidavit questions
regarding a specific situation, but instead he provided general information already in his
possession. Person B noted that on June 10, 2015, she and Person A advised Complainant that
based on his cumulative rating up to that point, even if he scored 100% on the final (which was
the only assignment left to score), he would not meet the 75% overall grade, to pass the course.
Person B noted that Complainant was treated the same as all other participants. She noted that
one other student also failed the course.

On appeal, Complainant argues that he established a prima facie case of age and retaliation
discrimination. Complainant claims the Agency’s reason for failing him was not believable.
Complainant states on the first day of class he scored a 90% and stated that on the second day of
class his grade should go higher not lower with additional training. Complainant claims it is
“highly suspicious” that his homework and quizzes were graded “objectively.” Complainant
notes that Person A and Person B stated that participants were allowed to use the notes and
handouts given to them to prepare their homework assignments. He notes that Person B also
stated that the homework he turned in and which resulted in a zero grade was information that
was previously provided to him. Complainant argues this is contradictory.

In addition, Complainant notes that Person B stated she became aware of Complainant’s prior
EEO activity before the class started. Complainant notes that Person B stated she did not recall
how she became aware of this. Complainant claims this is an inconsistent statement.

Complainant also claims that he contacted Person C, a Manager/Coordinator, for information
about the job. He stated that he told Person C that he was a private investigator licensed by
Kentucky and well suited to investigate EEO complaints. Complainant claims that Person C
made negative comments about private investigators.
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Complainant contends these comments were intended to dissuade him from applying for the
EEO investigator job; however, he noted he applied anyway.

In response to Complainant’s appeal, the Agency notes that despite his claim that the quizzes and
assignments were not graded “objectively,” he offers no evidence to support his claim. The
Agency notes that the answer keys for the quizzes, which involved a mix of True-False, multiple
choice, and fill-in-the blanks questions and covered material specifically discussed in class. The
Agency states the Analysts assigned to review the homework submissions have been reviewing
these training assignments and actual investigator submissions for years. Regarding the
submission on which earned Complainant a 0% rating, the Agency explains Complainant
submitted as his work product sample questions which had been provided to all of the
participants concerning purview information but did not follow the presenters’ instructions and
develop customized questions concerning all of the aspects of the actual claim. The Agency
notes the purpose of the assignment was to prepare a full set of interrogatories to be presented to
a management official concerning every aspect of the claim, not just his knowledge of the
complainant’s purviews. The Agency argues it was not a subjective conclusion that Complainant
had not completed the assignment as directed. The Agency acknowledges that participants could
use notes and handouts to assist them in completing the assignment, but this was not a substitute
for developing questions specific to the claim involved in the exercise.

The Agency states Complainant did not present any evidence to establish that his age played any
role in his participation in the Skills Enhancement session or in management’s treatment of him
during that session. He simply noted he was probably the oldest person in the class and made a
general observation that he believes we live in a youth-oriented society. The Agency states that
none of the individuals named by Complainant are proper comparators since they completed the
assignments in a satisfactory manner and achieved the required passing score of 75% over the
course of the week. In contrast, the Agency notes that Complainant’s performance in connection
with the quizzes and homework assignments through the first three days made it impossible to
reach the 75% overall score.

Further, the Agency responds to Complainant’s concern about the alleged inconsistencies in
Person B’s statement that she heard about Complainant’s prior EEO activity but was not aware
of how she learned about it. The Agency notes this means that Person B heard about the EEO
activity but did not recall from whom or when she heard of it. The Agency also notes that
Person C’s statement that it has been NEEOISO’s experience that private investigators have not
been particularly successful as contract EEO investigators simply stated a fact and has nothing to
do with Complainant’s age or prior EEO activity.

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.
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§ 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”).

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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Assuming Complainant established a prima facie case of discrimination, we note the Agency
articulated legitimate, nondiscriminatory reasons for its actions. Person A and Person B advised
Complainant on the third day of the five-day Skills Enhancement training session, that based on
the scores he had received on assignments to date, he could not achieve the cumulative 75%
grade to pass the course. Despite his contentions, Complainant has presented no evidence that
the assignments were not graded objectively. Complainant also did not dispute the Agency’s
contention that on the homework assignment on which he received a zero he merely submitted as
his work the product sample questions that had been provided to all participants concerning
purview information, and that he did not develop customized questions concerning the actual
claim in the homework assignment. Upon review, we find no inconsistency in Person B’s
statement that although she knew about Complainant’s prior EEO activity before the start of the
training class, she did not remember how she became aware of it. In addition, with regard to
Person C’s statement that it has been NEEOISO’s experience that private investigators have not
been particularly successful as contract EEO investigators, we note that Complainant did not
show that Person C was involved in Complainant’s failure of the training class. Moreover, we
find the statement by Person C does not constitute evidence of discriminatory animus.

Upon review of the record, we find that Complainant failed to establish, by a preponderance of
the evidence, that the Agency's articulated reasons for its actions were pretext for discrimination.

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CONCLUSION

Accordingly, the Agency’s final decision 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.
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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

June 29, 2018
Date