Kermit P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120181932 (E.E.O.C. Oct. 25, 2018)

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

Kermit P.,1
Complainant,

v.

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

Appeal No. 0120181932

Agency No. 4E980011917

DECISION

On May 16, 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
April 25, 2018, 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 Sales,
Services/Distribution Associate at the Mercer Island Post Office in Mercer Island, Washington
(WA).

On September 25, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of national origin (Turkish) when he was not interviewed
or selected for the following positions:

1. 05/30/2017: Job Posting #10107021; Not selected August 9, 2017;
2. 06/21/2017: Job Posting #10112957; Not selected August 16, 2017;

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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3. 06/28/2017: Job Posting #10113568; Position canceled August 17, 2017;

4. 07/23/2017: Job Posting #10118202; Position canceled August 4, 2017; and

5. 08/11/2017: Job Posting #10122116; Position canceled August 25, 2017.

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 its actions. With regard to claims (1) and (2), the Agency explained that Complainant was not
selected because he failed to interview for the positions. For claims (3), (4), and (5), the Agency
determined that these vacancies were canceled without interviewing or selecting any candidate. 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”).

During the investigation, Complainant alleged that the Agency’s failure to follow established
competitive procedures amounted to discrimination. He contended that management officials
violated Handbook EL-312 by denying him the opportunity to interview.

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in 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).
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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). 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. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983).

Regarding claims (1) and (2), the Agency articulated legitimate, nondiscriminatory reasons for
Complainant’s nonselection. The Agency explained that Complainant was not selected for these
positions because he was either unavailable to interview for an extended period of time or failed
to answer his telephone. The Agency indicated that the selectees for both positions received the
highest scores among the candidates.

Complainant asserted that the Agency’s legitimate, nondiscriminatory reasons were pretextual
because he was qualified for the positions and that he was unable to find another reason for not
being given the opportunity to interview. 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 selectees for either position. In this regard, we note that the selectees
participated in the interview process and ultimately received the highest scores based on their
credentials and interview scores. Complainant has not shown that his qualifications were plainly
superior to those of the selectees.

We also find meritless his contention that the Agency’s failure to interview him is evidence of
pretext. Although we acknowledge that Sections 754.1 and 755.3 of the Handbook require
selecting officials to conduct interviews prior to selection, these sections do not require selecting
officials to interview every candidate. Moreover, the record reflects that the selecting officials for
both positions offered Complainant the opportunity to interview, but Complainant either declined
to interview on the scheduled interview date for personal reasons or the hiring official was unable
to contact him to reschedule the interview. Complainant has not offered any evidence of
discrimination based on his national origin.

Finally, we agree with the Agency’s finding of no discrimination with regard to claims (3), (4),
and (5).2 The record reflects that the Agency canceled all three vacancy announcements without
interviewing or selecting any candidate. To the extent that the Agency may have preselected a
candidate prior to canceling the vacancy announcement in claim (3), Complainant should bear in
mind that agencies have broad discretion to undertake personnel actions.

2 Although the record contains three affidavits indicating that the vacancy in claim (5) was filled,
the Agency found that the vacancy was ultimately canceled. The Agency determined that the
individuals who provided the affidavits were incorrectly referencing a different position.
Complainant has not challenged the Agency’s finding on appeal.
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They may even preselect a candidate as long as the preselection is not premised upon a prohibited
basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9,
2015). Complainant has failed to show that the Agency’s explanations were 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. 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.
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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

October 25, 2018
Date