Edson S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 31, 2019

2019002570 (E.E.O.C. Dec. 31, 2019)

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

Edson S.,1
Complainant,

v.

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

Appeal No. 2019002570

Hearing No. 440201900001X

Agency No. 1J-607-0024-18

DECISION

On March 30, 2019, 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 5, 2019, final decision concerning his equal employment opportunity (EEO) complaint.
He alleged 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

At the time of events giving rise to this complaint, Complainant worked as a Full Time Motor
Vehicle Operator, Grade 7, at the Agency’s Chicago Processing & Distribution Center facility in
Chicago, Illinois.

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.

2019002570

2
On or about October 18, 2017, Complainant initiated two union (APWU) grievances.2 On
December 19, 2017, and on January 19, 2018, Complainant contacted an EEO Counselor
regarding his EEO claims. On March 23, 2018, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of sex (male), age (48), and reprisal for
initiating the two union grievances and for his current protected EEO activity under Title VII and
the ADEA, when:

1. On December 19, 2017, Complainant was not selected for the Network Specialist
position posted under Vacancy Announcement 10130703; and
2. On January 19, 2018, Complainant was not selected for a Network Specialist
position at the Chicago International Military Service Center (“IMSC”).

The Agency accepted the complaint and conducted an investigation. The pertinent record
developed during the investigation reveals the following facts.

Claim 1 – Non-selection 1

Complainant had been a City Letter Carrier, before becoming a Motor Vehicle Operator in 1996.
Complainant had also served in numerous detail assignments, including as a Transportation
Network Specialist, Supervisor Transportation Operations, Operations Support Specialist, and as
a Vehicle Dispatch Clerk.

Complainant named the alleged responsible management officials as the Manager of
Transportation Networks (female, DOB 1953) (“RMO1”), the Plant Manager (female, DOB
1975) (“RMO2”), and the Chicago District Senior Plant Manager (male) (“RMO3”).
Complainant averred that the selecting officials (RMO1 and RMO2) would have known of his
prior grievances. Both denied knowing of his prior EEO activity. Complainant also asserted that
the Chicago District Senior Plant Manager (RMO3) was involved in his two APWU grievances.

Complainant applied for the Network Specialist position online in USPS eCareer on September
20, 2017. A total of thirty-three USPS employees applied for the Network Specialist position at
the Chicago VMF. Complainant was interviewed on October 24, 2017. Five were found to have
minimally acceptable KSAs, including Complainant, and the person subsequently selected for
the non-selection at issue.

According to the Agency’s procedures, applicants for the positions at issue are evaluated based
on their demonstrated knowledge, skills, and abilities (“KSAs”) relevant to the position’s
requirements. When there are 11 or more applications for a vacancy, a review committee
assesses the eligible applicants. The applicants are evaluated based on eight criteria. The review
committee rated each applicant’s KSAs and recorded the committee’s ratings of the applicants
on the Requirement-by-Applicant Matrix, PS Form 5957.

2 Those grievances were identified as Management No. J15V-1J-D17660857 and Management
No. J15V-1J-D 17660858. The grievances were settled on November 2, 2017, at Step 2.
2019002570

3
The review committee then recommends the applicants who best meet the requirements of the
position to the selecting official. The selecting official is responsible for identifying the
applicant whose KSAs best meet the requirements of the position and who has a high probability
of successful performance in the position. All selections are subject to next higher-level review
and approval.

The record includes the application packages, the candidate applications, and the Ranking by
Questionnaire Report, showing the candidates recommended to the Selecting Official by the
Review Committee. Complainant had been listed on the Best Qualified List.
According to the report, the candidates recommended to the Selecting Official were the selectee,
Complainant, and two other female applicants. The matrix reflects that Complainant received the
same total rating as the selectee.

Complainant stated that he believed the recommending and selecting officials was RMO1 and
RMO2.3 Complainant also stated that he knew both officials. RMO2 denied knowing
Complainant and worked at a different location.

On December 1, 2017, the selecting official (RMO1) notified Complainant, via an email, that he
was not selected for the position.

The person selected is a female, slightly younger, who had no prior EEO activity. The selectee’s
online application stated that she had been a Tractor Trailer Driver since 2016, and that she
served two detail assignments, including one as an Acting Network Specialist. Her application
also stated that she was employed as a Tractor Trailer Driver for 14 years with non-postal
employers.

Complainant alleged that he was the best and most qualified person for the position.
Complainant contended that the selectee possessed a lower level skill set than Complainant and
that Complainant was previously tasked with training the selectee for the Network Specialist
position.

The selecting official (RMO1) testified that she did not select Complainant because she viewed
him as unreliable. She also cited his inconsistent performance when he had been detailed to the
Network Specialist position.

Claim 2 – Non-Selection 2

The Agency posted a second position for Network Specialist, under Vacancy Announcement
number 10147532, on November 7, 2017.

3 Another named official (RMO3) testified that he was not involved in either of the non-
selections.
2019002570

4
Twenty-four USPS employees applied, including Complainant, who applied online via USPS
eCareer. Complainant stated that, at the time of the second application and the second non-
selection, he had submitted his EEO complaint regarding the first non-selection.

Between November 29, 2017, and December 1, 2017, the review committee completed the KSA
Matrix for the position. Five of the applicants were found to have minimally acceptable KSAs,
including Complainant and the person ultimately selected for the position.

RMO2 selected a male employee, who was older than Complainant and who had no prior EEO
activity. He was a lateral transfer. The selectee’s online application reflected that he had been
employed by the Postal Service since 1987, when he started as a Letter Carrier. The selectee
also served as the “SV Coordinator for Busse” for five years. Prior to his December 2017
selection, the selectee worked as a Network Specialist at the Busse, Illinois P & DC. The matrix
reflects that Complainant received the same total rating as the person selected for the second
position.

The record is unclear as to the date on which Complainant was first informed of the second non-
selection. He received one notification on December 18, 2017, that he was not selected for the
position. Complainant initiated EEO contact the next day. The record reflects that he was also
formally notified of his non-selection for the second position on January 19, 2018.

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 a United States Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. The AJ forwarded the matter to the
Agency for issuance of a final decision.

In its final decision, the Agency concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. The Agency reasoned that Complainant failed to
establish that his two prior union grievances raised employment discrimination issues.
Consequently, the Agency found that Complainant did not establish that he had engaged in prior
protected EEO activity. The Agency also stated that the named responsible officials testified that
they were not aware of Complainant’s EEO activity at the time of the non-selections at issue. In
addition, the Agency noted that the selecting official (RMO1) testified that she did not select
Complainant, because she did not believe that he was a reliable candidate. She noted
Complainant’s attendance record, his prior disciplinary record, and his inconsistent performance,
while he had been detailed in the position.

The instant appeal followed, Complainant did not file a brief in support of his appeal.

2019002570

5
The Agency requested that we affirm its decision. The Agency asserted that Complainant did not
show that the management officials were aware of any prior EEO activity at the time of the non-
selections at issue. The Agency also maintained that Complainant acknowledged that he did not
believe that his age or sex was a factor in either non-selection.

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”).

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 Complainant to prevail, he
must first establish a prima facie case 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. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Dep’t of Community 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 a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

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. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

We will assume for purposes of our analysis that Agency management was aware of his union
grievance activity when Complainant was not selected for the two positions at issue. In this case,
however, we find that the record does not otherwise substantiate his claims.

2019002570

6
Specifically, we find that the record evidence does not support his claim that he was denied the
promotions because of his sex or age. The selectee for the second position was older than
Complainant and a man, as is Complainant. The selectee for the first position was a woman, but
she was not substantially younger than Complainant.

Even assuming that he established his prima facie claims for both non-selections, we find that
Complainant failed to prove, by a preponderance of the evidence, that the Agency’s proffered
reasons were a pretext for unlawful discrimination on the basis of his sex, age, or any prior
known EEO activity. The responsible management official acknowledged that she was the
deciding official and she articulated legitimate, non-discriminatory reasons for her action.
Regarding the first non-selection, RMO1 testified that she did not select Complainant after she
concluded that Complainant was not reliable and had not performed consistently, while he was
detailed to the position. Regarding the second non-selection, RMO2 testified that she selected
the person who she deemed the most qualified. Complainant did not offer proof on appeal to
show these reasons were a pretext.

Therefore, we find that Complainant did not show that the Agency failed to make its actions free
of discrimination, through evidence proving that a protected basis (in this case, that his sex, age,
or any prior EEO activity) was a factor in its decisions.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision for the reasons stated herein.

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 tends 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.
2019002570

7
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.

2019002570

8
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

December 31, 2019
Date