Janiece H., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120143201 (E.E.O.C. Feb. 25, 2016)

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

Janiece H.,
Complainant,

v.

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

Appeal No. 0120143201

Hearing No. 450-2013-00227X

Agency No. 1G-756-0011-13

DECISION

Complainant filed an appeal from the Agency’s August 19, 2014 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Distribution Operations Supervisor (DOS), EAS-17, at the Agency’s
Network Distribution Center in Dallas, Texas. On February 1, 2013, she filed an EEO complaint
in which she alleged that a Supervisory Operations Support Specialist, in her capacity as a
Selecting Official (SO) discriminated against her on the bases of sex (female) and reprisal
(previous EEO activity) by not selecting her for the position of EAS-18 Operations Support
Specialist (OSS-18) on December 18, 2012. She also alleged that, since January 18, 2013, the
Plant Manager (PM) and the EAS 22 Lead Distribution Operations Manager (LDOM) refused to
allow her to cover an EAS-19 Distribution Operations Manager (DOM-19) position.

With regard to the nonselection, the SO averred that as a result of a reorganization, two OSS-17
positions were eliminated and three OSS-18 positions were created. She also averred that the
1This 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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two displaced employees could not be promoted automatically and would have to compete for
those positions. The SO interviewed Complainant and seven other applicants for the three
positions. She reviewed the applications and conducted the interviews herself, asking each
applicant the same set of eighteen questions. At the conclusion of the interview phase, the SO
assessed the applicants against the seven ranking factors for the OSS-18 position. Out of a
possible score of 21 points, the highest-scoring selectee received a score of 19 and the other two
selectees received scores of 16. Complainant received a score of 14. The SO testified that
Complainant did not perform as well as the selectees during her interview and that the Selectees
had stronger background in mail processing and delivery operations. Investigative Report (IR)
176-79, 319, 335.

As to the alleged denial of coverage opportunities for the DOM-19 position, the LDOM averred
that, effective January 2013, three DOM-19 out of four were eliminated in accordance with a
reduction-in-force. The Agency had a policy in place pursuant to which DOSs could serve as
acting DOMs on a rotating basis only when the incumbents were on their scheduled off days or
on leave. The LDOM and two DOMs, one of whom was Complainant’s supervisor, averred that
when Complainant was offered the opportunity to rotate as an Acting DOM-19, she declined and
insisted on being detailed into the position on an everyday basis. The DOMs had explained to
Complainant that such a detail would require an authorization that the facility did not have. IR
201, 209-10, 221. The PM averred that he was not involved in selecting DOSs to cover DOM
positions, and that this decision was usually left to the Lead DOM. IR 194-95.

At the conclusion of the investigation, the Agency notified Complainant of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Although Complainant timely requested a hearing, the AJ assigned to the case granted the
Agency’s September 27, 2013, motion for summary judgment and issued a decision on June 30,
2014, without holding a hearing. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions involving promotions or
assignments unless there is evidence of a discriminatory motivation on the part of the officials
responsible for making those decisions. See Texas Department of Community. Affairs v.
Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on her disparate
treatment claim, Complainant would have to present enough evidence to raise a genuine issue of
material fact as to whether the SO or the LDOM were motivated by unlawful considerations of
her gender or previous EEO complaint in connection with her not being promoted to OSS-18 or
not covering the MDO position. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

Complainant may do so in circumstantial evidence cases such as this by presenting documents or
sworn testimony showing that the reasons articulated by the SO and the LDOM for their actions

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are pretextual, i.e., not the real reason but rather a cover for sex discrimination or reprisal. St.
Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253.
When the issue is nonselection, evidence of pretext can take the form of a showing that
Complainant’s qualifications for the position were plainly superior to those of the selectee.
Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721 (December 3, 2015).
Other indicators of pretext include discriminatory statements or past personal treatment
attributable to the SO or the SMDO, comparative or statistical data revealing differences in
treatment across gender-related lines, unequal application of Agency policy, deviations from
standard procedures without explanation or justification, or inadequately explained
inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC
Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why she believed that her sex and previous EEO complaint were
factors in her nonselection, Complainant maintained that she was more qualified for the position
than the selectees. IR 92. The Commission has long held that an employer has discretion to
choose among equally qualified candidates as long as the selection is not based on unlawful
criteria, in this case gender and prior EEO activity. Complainant v. Department of Homeland
Security, EEOC Appeal No. 0120141478 (July 31, 2015). Beyond her own assertions, she has
not presented any documents or sworn statements that undermine the SO’s assessment of the
applicants’ qualifications.

When asked the same questions regarding coverage of the DOM-19 position, Complainant
replied that she was the only female DOS and that the LDOM and the PM had been named in her
prior EEO complaint. IR 96. The laws the Commission enforces cannot prevent an employer
from making decisions that its employees disagree with unless those decisions are rooted in a
statutorily proscribed. motivation. Erick K. v. United States Postal Service, EEOC Appeal No.
0120142888 (January 14, 2016). And on this crucial issue, Complainant did not provide
evidence of any of the indicators of pretext described above. She has not submitted any sworn
statements from other witnesses or documents that contradict the explanation provided by the
LDOM and the PM, or which call the veracity of these officials into question. Complainant
herself acknowledged that she had asked the LDOM if she could be detailed into the DOM-19
position on a full-time basis, and that the LDOM had told her no. IR 96.

On the basis of the foregoing, we find, as did the AJ, that no genuine issue of material fact exists
with respect to motivation of the SO, the LDOM, or the PM in connection with either of the
incidents set forth in the instant complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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 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.

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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

February 25, 2016
Date