Jarvis M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 2, 2019

0120182246 (E.E.O.C. Aug. 2, 2019)

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

Jarvis M.,1
Complainant,

v.

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

Appeal No. 0120182246
Hearing No. 450-2015-00151X
Agency No. 1G757000114

DECISION

On June 14, 2018, 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
May 9, 2018, final order 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 order.

ISSUE PRESENTED

Whether Complainant established that he was discriminated against based on race (African-
American) when he was not selected for promotion to the position of Manager
Transportation/Networks (EAS-21).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Coordinator,
Transportation Surface Transfer Center-EAS-17 at the Agency’s Surface Transfer Center facility
in Dallas, Texas. On September 18, 2014, Complainant filed an EEO complaint alleging that the
Agency discriminated against him as set forth above.

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.
0120182246

2
Complainant applied for the position of Manager of Transportation/Networks in June 2014. He
maintained that he met all of the qualifications for the position. He was interviewed by S1, the
Transportation Manager, Dallas District, for the position. On September 2, 2014, he received an
email dated August 6, 2014, that read, “you were not selected for this job posting.” Complainant
alleged that the selection was based on his race and not his skill set or qualifications.

S1, the selecting official, states that he interviewed four (4) of the nine (9) applicants who applied
for the position, and that a Review Committee was not needed. The four applicants who were
interviewed, including Complainant, were asked the same ten questions. A1 (white) was selected
for the position. S1 did not explain why only four individuals were interviewed. The two other
applicants who were not selected were also black.

S1 stated that A1 was selected based on his achievement of obtaining the highest scores during the
interview, along with his extensive involvement in the transportation field, including his work as
a Network Specialist, Air Transportation Specialist, Network Planning Specialist, and his five
years of managerial experience. When considering Complainant’s qualifications, S1 concluded
that he possessed adequate work-related experience for the position but did not convey a breadth
and depth of knowledge of the complex issues involving the interface between transportation and
operations, as revealed in Complainant’s responses to several hypothetical questions posed to him
during the interview. According to S1, A1 exhibited a comprehensive understanding of the
complexities involved with these issues, as reflected in his answers to the interview questions. S1
stated that he followed the Agency’s hiring procedures in making his determination, and that race
was not a factor in Complainant’s non-selection. S1 also expressed concerns about Complainant’s
wife, who was an employee in the section to which Complainant was applying. If Complainant
had been selected, he would have become the supervisor of his wife. Complainant felt that these
concerns could be addressed.

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). Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing.
The AJ provided both sides with an opportunity to respond. The record reflects that no further
arguments was provided. The AJ issued a decision without a hearing on May 24, 2018. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a brief on appeal.

The Agency submitted a brief that, among other things, supported its view that the best candidate
was selected, and that Complainant failed to demonstrate the Agency’s legitimate, non-
discriminatory reasons were pretext for discrimination. Accordingly, the Agency asked that its
final decision be affirmed.
0120182246

3
ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant did not meet
that burden. As noted above, he, nor the Agency, responded to the AJ’s notice that he intended to
issue a decision without a hearing. Ultimately, we find that the AJ correctly determined that there
are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s
issuance of a decision without a hearing was appropriate.

0120182246

4
Disparate Treatment

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.

Because the selectee, A1, is white, we find that Complainant has established a prima facie case of
discrimination based on race. We also find that the Agency has articulated a legitimate non-
discriminatory reason for its actions. S1 stated that A1 was selected because he had the highest
score during the interview, his extensive involvement in the transportation field, and his five years
of managerial experience. We further find that Complainant did not offer persuasive evidence of
pretext. Moreover, the record does not otherwise show that the non-selection was due to
Complainant's race. He simply did not establish that his qualifications were demonstrably superior
to A1’s qualifications. Complainant believed that his 29 years of experience in transportation
made him the most qualified for the position. We have repeatedly held that mere years of service,
or length of service, does not necessarily make an individual more qualified to meet the needs of
an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161689 (Sep.
21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). Neither
does years of service automatically make an individual more qualified. Ford v. Dep’t of Health
and Human Services, EEOC Appeal No. 01913521 (Dec. 19, 1991). The Commission will not
substitute our judgment for the judgment of selecting officials familiar with the present and future
needs of their facility and therefore in a better position to judge the respective merits of each
candidate, unless other facts suggest that proscribed considerations entered into the decision-
making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6.
1998). Accordingly, we find that Complainant offered insufficient evidence to prove by a
preponderance of the evidence that the stated reasons were a pretext for discriminatory animus.

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 order.

0120182246

5
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.
0120182246

6
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

August 2, 2019
Date