0120172932
09-18-2018
Letty K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Letty K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120172932
Agency No. 4E680002017
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, from the Agency's August 3, 2017, final decision 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., and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Postmaster, EAS-20, at the Holdrege Post Office in Holdrege, Nebraska.
On March 8, 2017, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of sex (female) and age (56) when:
On December 22, 2016, she was notified that she was not selected for a downgrade from a level 20 Postmaster to a level 17 Supervisor.
At the conclusion of the investigation, 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 (EEOC or Commission) Administrative Judge ("AJ"). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Complaint's career with the Agency spanned 17 years, and an array of Nebraska Post Offices. She gained her first supervisory experience in 2007, when she completed the requisite exam and detailed as a Level 17 Supervisor at the Hastings Post Office. Afterward, she worked as a Level 17 Supervisor at the Grand Island Post Office until 2013, with a 3-month stint detailing as a Level 18 Officer-In-Charge ("OIC") at the Aurora Post Office in 2012. In 2013, Complainant accepted a Level 20 Supervisor position at the York Post Office. In 2014, Complainant obtained a detail as an OIC for the Holdrege Post Office, where she was then hired as the Postmaster.
By May 2016, Complainant was "exhausted" and found the "stress [of the Postmaster position] was hindering [her] health." She cites in the record that multiple grievances had been filed and two open harassment investigations were underway at Holdrege Post Office. Agency policy provided that an employee in a supervisory position, such as Complainant, could transfer noncompetitively into a vacant position if he or she "voluntarily accepts or requests in writing a position at a lower level." Employment and Placement Handbook ("EL-312"), Ch. 75 (Nov. 2015). However, it is "solely at the discretion of the selecting official" whether to grant the transfer request, or require the employee to apply competitively. EL-312 at 752(d).
In November 2016, Complainant requested a noncompetitive transfer to a vacant Level 17 Supervisor position at Hastings Post Office ("Hastings Supervisor"). The same vacancy announcement was posted in May and August 2016. Although she responded, the position was not filled either time. However, for the August posting, Complainant contacted the Hastings Postmaster ("HP") (male, age 61), who had briefly been her supervisor in 1999 during a detail. HP was the selecting official for the Hastings Supervisor vacancy, and it was his practice to require all candidates to competitively interview. HP arranged for the Postmaster from the Alma Post Office ("AP") (male, age 56) to conduct the interview, a prepared list of questions, while he sat in. Complainant worked with AP at Grand Island Post Office about 10 years earlier. According to Complainant, two other candidates ("C1" and "C2") also interviewed.
In December 2016, six qualified candidates, including Complainant, and another individual who had requested a noncompetitive transfer, as well as C1 and C2, were interviewed for the Hastings Supervisor position. Again, AP conducted the interview, with HP sitting in. Based on their notes, HP and AP scored the candidates. HP selected the highest scoring candidate, C1 (female, age late 30s) for the position, with MPOO as the concurring official. Complainant had the third highest score with a 51. C1 scored 71, and C2 (female, age 48) had a score of 60.
Complainant alleges that she is far more qualified for the Hastings Supervisor position than C1 and C2, who both held non-supervisory level positions at the Hastings Post Office. Complainant also indicates that the Agency placed her at disadvantage during the interview because, among other things, she did not receive a response when she asked to visit the Hastings Post Office as preparation for the interview and the interview lasted 30 minutes, compared with her September interview, which lasted 60 minutes. Also, HP made a comment that she "did not seem or act like her usual self" during the interview.
The Agency's final decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged, giving rise to the instant 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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This established order of analysis, in which the first step normally consists of determining the existence of a prima facie case, need not be followed where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue. Since the instant complaint involves an allegation of disparate treatment and since the agency articulates a legitimate nondiscriminatory reason for not selecting complainant, it is Complainant's burden to demonstrate by a preponderance of the evidence that the agency's non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502 (1993). In a non-selection case, pretext may be demonstrated by a showing that a complainant's qualifications are "observably superior" to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981).
As the alleged discriminatory action is nonselection, we note that it is well established that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Burdine, at 259. Where, as here, the position at issue is management level and requires specialized knowledge (e.g. Post Office operations), the Agency has even greater discretion in its selection criteria. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). For instance, the Commission has long held that a person's length of experience does not necessarily mean she is better qualified. See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002).
Here, the Agency's legitimate nondiscriminatory reason that Complainant was not selected for the position of Level 17 Supervisor at Hastings Post Office ("Hastings Supervisor") because she did poorly on her interview and her overall score was lower than the selectee, C1. Complainant argues that this is pretext for discrimination because her years of experience, including her time working in, and supervising the same position she was competing for, are evidence that she has "observably superior" qualifications than the selectee. Complainant argues C1, as the selectee, is not the "most qualified" candidate because C1 had never held a supervisory position before her selection as Hastings Supervisor, not even a detail as an OIC. Complainant also appears to argue that she was placed at a disadvantage during the interview process, causing her to perform more poorly than she may have otherwise.
Given HP's emphasis on the interview, Complainant has not established that her qualifications are "observably superior." Complainant concedes that her performance during the interview was poor, and that she missed some questions. Complainant indicated she was not as prepared as she could have been, explaining that she was on paid administrative leave at the time, and "some of the questions pertained to news items within the company that [she] knew nothing about." There is no evidence that the duration of the interview or the alleged lack of response to her request to visit the Hastings Post Office to prepare for the interview, placed Complainant at a disadvantage compared to the other candidates. Complainant's opinion that HP placed too much emphasis on the interview, and not enough on employment history does not constitute evidence of discriminatory intent, nor is it a sufficient reason for this Commission to insert itself into the selection process, which is discretionary to the Agency.
We find that HP acted within his discretion when he opted to require a competitive hiring process for all candidates and focus on interview performance as the determining factor for his selection. Significantly, the interview was almost entirely comprised of objective questions about specific operational aspects of the Post Office, indicators of knowledge that HP, believed was necessary for a Level 17 Supervisor. Despite the Agency's policy that selections with fewer than 10 candidates do not require a panel, HP still took steps to ensure, as both C1 and C2 were in his chain of command, that AP, an outside party, conducted the interview. Both AP and HP took notes to ensure they did not miss an answer. In addition to interview scores, HP also considered the candidates' performance during the interview, their applications for the position, and their "KSAs" (Knowledge, Skills, and Abilities) as they related to the position description. HP's selection was reviewed and approved by MPOO, the concurring official.
Having reviewed the record and contentions on appeal, including those not specifically addressed herein, we find Complainant has not established, by a preponderance of the evidence, that the Agency's explanation for her nonselection was pretext for discrimination.
CONCLUSION
Accordingly, the FAD dismissing Complainant's complaint is AFFIRMED.
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.
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
September 18, 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
0120172932