0120172460
07-17-2018
Karleen R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karleen R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120172460
Hearing No. 490-2012-00113X
Agency No. 6H000000511
DECISION
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 final decision, dated June 9, 2017, concerning her equal employment opportunity (EEO) complaint. She 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an IS Operations Technician, EAS-11, at the Agency's Security Investigations Service Center (SISC) facility in Memphis, Tennessee.
On September 29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female),2 religion ("Brooks Religion"), and reprisal for prior protected EEO activity under Title VII, when:
1. On June 10, 2011, three managers of the Security Investigative Services Center (SISC) made derogatory remarks directed at Complainant in retaliation for her engaging in prior protected EEO activities; and
2. On July 12, 2011, Complainant learned that the Manager of SISC selected others for the vacant Security Clearance Specialist position for which Complainant applied.
The Agency dismissed claim 1 for failure to state a claim.
The record shows that Complainant filed prior complaints against the named selecting official, who was aware of Complainant's EEO activity.
Both Complainant and the selecting official identified their religion as "Baptist." Complainant's claim, however, is that her supervisor set up her own non-affiliated religious group ("Brooks religion") which was not a recognized Baptist denomination and the selecting official carried out religious meetings on the Agency's premises.3
The Agency announced that it was seeking applicants for five Security Clearance Specialist positions. Complainant, along with 31 others, applied.
The record shows that the selecting official appointed the review committee, which served as a rating panel. The panel averred that they were unaware of Complainant's religion or prior EEO activity.
The selecting official asked the panel to provide her with the names of top ten candidates from which to select. The record showed that Complainant's name she was not in the top ten candidates referred.
The panel issued Complainant a score (50) that disqualified her for further consideration for the position at issue. Complainant was not interviewed, based on the independent recommendation of the panel.
Although the announcement was for five vacancies, six individuals were eventually selected, after one was offered the position, but he declined. The record shows that the selecting official selected a male who allegedly had a personal relationship with the selecting official. She also selected two persons who attended the supervisor's weekly religious activities on the Agency's premises.
At the conclusion of the investigation of claim 2, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged in claim 2. The Agency reasoned that assuming that Complainant articulated a valid prima facie case of discrimination based on religion, sex, and retaliation, the Agency has offered legitimate, non-discriminatory reasons for its actions. The selecting official averred that she had no influence over the names submitted by the review committee and Complainant was not selected because she was not recommended by the review committee. This appeal followed.
CONTENTIONS ON APPEAL
Neither party submitted a brief for this appeal.
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").
Initially, we note that, on appeal, Complainant did not object to the dismissal of her first claim that management officials made derogatory comments about her. Therefore, we will use our discretion to focus this analysis on the merits of her claim #2.
Section 717 of Title VII requires that federal agencies make all personnel actions free of religious and sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on ... sex or religion"). Reprisal is also unlawful under Title VII.
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, she 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.
We will assume for purposes of our analysis that Complainant established her prima facie claims. Complainant is female. A male was selected. Complainant did not participate in her supervisor's religious group, which was identified as "Brooks religion." A person who did participate was selected. None of the persons selected had prior EEO activity.4
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 find that the responsible management officials articulated legitimate, non-discriminatory reasons for each of the Agency's actions. The selecting official averred that she picked the selectees from the list of candidates whom the panel referred to her for consideration.
The review committee did not refer Complainant's name to the selecting official based on her score. The review committee issued her a score of 50, which ranked her in 15th place.
Further, we find that the record evidence does not support Complainant's claim that her supervisor negatively influenced the selection process to disfavor those with EEO activity. The affidavits of the interview panel attested that they were unaware of her religion, past EEO activity, and that the selecting official had not exerted negative influence on the process.
For these reasons, 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 her religion, sex, or prior EEO activity. Stated differently, she did not show that the Agency failed to make its actions free of discrimination through sufficient evidence proving that a protected basis - in this case, her religion, sex, and/or prior EEO activity was a factor in its decisions.
CONCLUSION
Accordingly, we AFFIRM the Agency's decision finding no discrimination 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. 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. 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 17, 2018
__________________
Date
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.
2 The Agency FAD incorrectly references Complainant's sex as male.
3 One of the selectees for the position at issue participated in those sessions was selected for the position at issue.
4 We note that Complainant is not alleging a hostile work environment.
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