Julian L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 6, 2017

0120151517 (E.E.O.C. Jul. 6, 2017)

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

Julian L.,1
Complainant,

v.

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

Appeal No. 0120151517

Hearing No. 410-2014-00324X

Agency No. 4K-300-0204-13

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 4,
2015, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Manager, EAS-21, at the Northside Carrier Annex in Atlanta, Georgia. He applied for an
identical position at the Crosstown Carrier Annex, but was notified by email on May 15, 2013,
that the Review Committee did not recommend him for an interview with the Selecting Official.
Investigative Report (IR) 63.

On October 16, 2013, Complainant filed an EEO complaint in which he alleged that the
Postmaster, in her capacity as the Review Committee Chair, and the other two Review

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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Committee members (henceforth referred to as CM 1 and CM2) discriminated against him on the
basis of race (African-American) in reaching their decision.2 The Agency investigated the
complaint and thereafter notified Complainant of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew his request. Consequently, 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 Postmaster, CM1 and CM2 averred that they had reviewed the candidates’ application
packages against the ten knowledge, skill, and ability factors that were critical to success in the
position. The Selecting Official had instructed the Review Committee to refer only the names of
the applicants with the three highest scores to be interviewed. The Committee referred the
eventual Selectee and two other applicants. None of the Review Committee members scored
Complainant among the top three. IR 78-79, 81-83, 92, 99.

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”).

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). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. Dep't of Cmty. 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
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

2 Complainant also raised a claim of age discrimination in connection with the incident, but
withdrew that claim during the processing of the complaint. IR 62, 63.
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Since the Agency has articulated legitimate nondiscriminatory reasons for not referring
Complainant for an interview, the entire prima facie inquiry can be dispensed with. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s articulated reason is a pretext, i.e., not the real reason but rather a cover for
discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be
demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s
proffered legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802
(Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30,
2008). Here, the only evidence of pretext put forth by Complainant is his own assertion that he
was better qualified than the selectee. IR 63-64. He has not submitted affidavits, declarations, or
unsworn statements from witnesses other than himself nor documents which contradict the
explanations provided by the Postmaster, CM1, and CM2, or which otherwise call their veracity
into question. We therefore find, as did the Agency, that Complainant has not presented
evidence sufficient to establish the existence of discriminatory intent on the part of the
Postmaster, CM1, or CM2.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that he was discriminated
against as alleged.

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),
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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.

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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

July 6, 2017
Date