Herb S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120171929 (E.E.O.C. Oct. 23, 2018)

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

Herb S.,1
Complainant,

v.

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

Appeal No. 0120171929

Agency No. 1E981002516

DECISION

On May 9, 2017, 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 25, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler in the
Seattle District of the United States Postal Service.

On October 3, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of national origin (Turkish) when:

1. On or around April 16, 2016, he submitted a reassignment request to the Bellevue (WA)
Post Office, and he was not selected on August 16, 2016;

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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2. On or around May 1, 2016, he applied for the Maintenance Mechanic Level 07 position
in S KING CNTY INDP DLV DTR CTR in the Seattle District, and he was not
selected;

3. On or around June 1, 2016, he applied for the INSHD CARRIER (CITY) position at
the Lynnwood (WA) Post Office, and he was not selected on August 16, 2016;

4. On or around July 1, 2016, he applied for the INSHD CLERK CRAFT position at the
SEATTLE NTWK DIST CTR, and he was not selected on September 9, 2016; and

5. On or around July 19, 2016, he became aware that he was not selected for the mail
clerk or mail delivery positions at the Redmond Post Office.

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.

The Agency determined that management had articulated legitimate, nondiscriminatory reasons
for denying Complainant’s requests for reassignment and rejecting his application for a position
at the Redmond Post Office. The Agency explained that management denied Complainant’s
requests for reassignment because he did not have the requisite period of service at his facility to
qualify for reassignment under the terms of the Agency’s Memorandum of Understanding (MOU)
with the Union. Additionally, the Agency noted that the Redmond Post Office removed the
vacancy announcement for mail clerks and carriers because management officials failed to follow
established procedures for posting positions. In finding no discrimination, the Agency found that
Complainant failed to prove by a preponderance of the evidence that management’s legitimate,
nondiscriminatory reasons were pretext for discrimination based on national origin.

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”).

On appeal, Complaint contends that the Agency’s failure to follow its own policies and procedures
gives rise to an inference of discrimination. Complainant argues he met the applicable 18-month
lock-in period under the MOU with regard to claims (1), (3), and (4).
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For claim (2), Complainant asserts that the vacancy announcement for the Maintenance Mechanic
Level 07, did not include an in-service examination as a prerequisite. He alleges that the Agency
did not notify him of any testing requirement for the position. Finally, with regard to claim (5),
Complainant notes that the Agency found him eligible for the lock-in period in a letter dated
November 22, 2016. He argues that Agency contradicted itself in finding him ineligible for other
positions.

Complainant must satisfy a three-part evidentiary scheme to prevail of a claim of disparate
treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant must establish a prima facie case by demonstrating that s/he was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on 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). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993).

Regarding claims (1), (3), and (4), the Commission notes that the Agency articulated legitimate,
nondiscriminatory reasons for denying Complainant’s requests for reassignment. In the final
decision, the Agency indicated that Complainant was not eligible for reassignment when he
submitted his requests. The Agency explained that in accordance with the MOU with the Union,
“An employee must have at least eighteen months of continuous service in their present installation
prior to requesting reassignment to another installation.” The Agency noted that although
Complainant entered on duty on August 24, 2014, as a non-career Mail Handler, he did not accrue
service for reassignment eligibility purposes until June 13, 2015, when he gained career status.
Therefore, Complainant did not become eligible for reassignment until months after his
unsuccessful reassignment requests.

While the Commission acknowledges that Complainant disputes the manner in which the Agency
calculated his reassignment eligibility date, he has not shown that the Agency’s articulated reasons
were pretext for discrimination. We find that Complainant has not presented any evidence to
suggest that the Agency’s alleged miscalculation of his reassignment eligibility date or denials of
his requests for reassignment were in any manner related to his national origin.

We also note that the Agency articulated legitimate, nondiscriminatory reasons for its actions in
claim (2). Here, the record reflects that Complainant was one of three candidates for reassignment
to the Maintenance Mechanic Level 07 position. The selecting official, however, ultimately chose
a former maintenance employee to fill the position because none of the three reassignment
candidates had relevant experience or qualifications. In so doing, the selecting official explained
that the former maintenance employee had experience, unlike Complainant, and was within the
contractual period to request a return to craft from a supervisory position in accordance with the
MOU.
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Although Complainant believes that his nonselection was due to his national origin, we are
disinclined to find merit in such argument. In nonselection cases, Complainant can demonstrate
pretext by showing that his qualifications for the position were plainly superior to those of the
selectee. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015).
The preponderance of the evidence, however, does not show that Complainant’s qualifications
were plainly superior to the selectee for the Maintenance Mechanic Level 07 position. In this
regard, while we acknowledge that the vacancy announcement for the position did not include any
mention of an in-service examination, the evidence fails to demonstrate that such omission was
due to Complainant’s protected status. Moreover, we note that the selecting official rejected all
three reassignment candidates, including Complainant, because of their lack of relevant experience
in comparison to the selectee. Therefore, we find that Complainant has failed to fulfill his burden
of showing that the Agency’s articulated reasons were pretext for discrimination.

Finally, we agree with the Agency’s finding of no discrimination with regard to Complainant’s
nonselection to a mail clerk or mail delivery position at the Redmond Post Office. Although
Complainant alleges that his nonselection was on the basis of his national origin, the record reflects
that the Redmond Post Office canceled the vacancy announcements due to noncompliance with
Agency policy requiring managers to first post vacancies internally before accepting candidates
for reassignment. Complainant has failed to show that the Agency’s explanation was a pretext for
discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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.
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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.

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.

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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

October 23, 2018
Date