Lewis Z.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 8, 2018

0120160162 (E.E.O.C. Feb. 8, 2018)

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

Lewis Z.,1
Complainant,

v.

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

Appeal No. 0120160162

Agency No. 1J-603-0022-15

DECISION

On September 30, 2015, 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
August 31, 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 Full-Time Mail
Processing Clerk, PS-06, at the Fox Valley Processing and Distribution Center in Aurora,
Illinois. On February 27, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him based on race (Asian) and national origin (Pakistan)2 when on January
15, 2015, he was not selected for the Supervisor Distribution Operations, EAS-17, (SDO)
position.

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 Complainant initially raised religion (Muslim) as one of the bases of discrimination, but
withdrew it during the processing of his complaint.
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After 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 EEOC 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). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

FACTUAL BACKGROUND

The record shows that Complainant and several other employees applied for the SDO position in
September 2014. The Functional Purpose of the SDO position is: “Supervises an assigned group
of automated, mechanized, and/or manual processing and distribution operations at a mail
processing center/facility.” The Qualifications/Requirements of the SDO position include: (1)
Change Management; (2) Communication Skills; (3) Employee Focus; (4) Functional
Administration; (5) Operations Management; (6) Personal Acumen; (7) Knowledge of
Performance Management; (8) Work Unit Planning; and (9) Examination Requirement.

The record shows that a review committee consisting of three individuals (RCM1
(Black/African-American), RCM2 (Caucasian/Irish/Polish/Scottish), and RCM3 (African-
American/American)) assigned scores to each applicant based upon a review of the applications
provided. The review committee reached the following scores for the applicants: (1)
Complainant - 8; (2) the selectee (SE) (African-American) - 14; (3) C1 – (race/national origin
unknown) - 10; 3 (4) C2 (race/national origin unknown) - 8;4 (5) C3 (race/national origin
unknown) - 9;5 and (6) C4 (race/national origin unknown) - 11.6

Following review by the review committee, a panel of two individuals (INT1 (African-
American) and INT2 (Caucasian/Italy)) conducted interviews of the applicants and assigned
scores to each interviewee. The interview scores for each applicant are as follows: (1)
Complainant - 51; (2) SE - 62; (3) C1 - 52; (4) C2 - 52; (5) C3 - 46; and (6) C4 - 17.

Complainant’s application for the SDO position indicates that he has been a Mail Processing
Clerk since April 2014. Complainant previously served as a Casual Mail Handler since 2012.
From 2004 to 2010, Complainant worked as manager for a family-owned and operated import
and export business. His education level shows that he received a Master’s Degree in Computer
and Information Science in 2008.

3 C1 is a Full-Time City Carrier, CC-01, at the Aurora Post Office in Aurora, Illinois.
4 C2 is a Full-Time Supervisor Customer Service, EAS-17, at the Homewood Post Office in
Homewood, Illinois.
5 C3 is a Full-Time Garageman, PS-05, at the South Suburban Vehicle Maintenance Facility in
Bedford Park, Illinois.
6 C4 is a Full-Time Mail Processing Clerk, PS-06, at the Fox Valley Processing and Distribution
Center in Aurora, Illinois.
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SE’s application shows that she previously held positions as Acting Supervisor, Distribution
Operations and Mail Handler. Her education level shows that she has attended university, but
has not completed a degree.

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).

All responsible management officials deny knowledge of Complainant’s race and national origin.
Complainant asserts that this information is ascertainable on his eCareer file. The record is
devoid of evidence that any of the responsible management officials reviewed the eCareer file
except for RCM2. However, we assume for purposes of this decision that Complainant’s race
and national origin was ascertainable by his appearance, and that he established a prima facie
case.

The record supports the finding that the Agency articulated a legitimate, non-discriminatory
reason for choosing SE over Complainant. Specifically, the record shows that SE received
higher scores from both the review committee and the interview panel, giving SE a higher total
score than Complainant.

In addition, INT1 testified that at the time of Complainant’s interview, he did not know much
about the Postal Service, or could not answer the questions as they related to the Postal Service.
INT1 also asserts that Complainant did not demonstrate general and specialized work experience
inside or outside the Postal Service.
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INT2 asserts that Complainant’s position and duties performed as an Expediter or Mail Processor
did not demonstrate enough supervisory skills that would make him a better candidate than SE,
who had been a Group Leader throughout INT2’s time at the Fox Valley Processing and
Distribution Center. INT2 also contends that as a Group Leader, SE had been in a supervisory
position and used performance measurement tools to measure the performance of the unit and to
reach goals through employee assignments.

We find that contrary to Complainant’s assertion, the record indicates that SE was better
qualified for the SDO position since she spent the year prior to the selection in a supervisory role
and her application’s responses reflected this fact.

Complainant also asserts that he was at a disadvantage because he was not given a detail with
supervisory responsibilities like SE was given. INT1 responds to Complainant’s assertion by
stating (without contradiction) that two employees (SE and C5) asked her for help in obtaining a
detail for upward mobility. INT1 explains that C5 wanted a detail near his home which included
the Fox Valley Processing and Distribution Center. INT1 assisted C5 in obtaining a detail at this
location. SE also requested a detail closer to her home, and INT1 helped her with that as well.
INT1 explains that she had never met (or had a conversation with) Complainant prior to his
interview for the SDO position. Accordingly, INT1 explains that she did not have an
opportunity to assist him with upward mobility training/opportunities.

Aside from Complainant’s bare, uncorroborated assertions, the record is devoid of evidence that
he was not given a detail in a supervisory position because of his race or national origin. Rather,
the record does not indicate that he ever asked INT1 for such an opportunity.

In addition, Complainant asserts that SE was preselected for the SDO position. Specifically,
Complainant asserts that the record contains an email dated December 4, 2014, from a manager
at the Schaumburg, Illinois facility (M1) to SE which purports to follow up on a possible detail.
The record shows that SE forwarded this email to INT1 stating: “Not sure how to reply to this
email.” The following day (which is also the day after interviews were conducted for the SDO
position) INT1 responded to SE’s email stating: “Easy, you tell [M1] at this particular time, I
would have to thank you for the opportunity in wanting me and our discussions about a possible
detail, however, I must decline at this present time as I had interviewed for the EAS vacant
position at Fox Valley and with the utmost confidence I believe I done well. I am in anticipation
in being awarded the position, I await with humble intentions.”

The record shows that INT1 responded to SE’s email after the applications and interviews were
rated. Accordingly, it is conceivable that INT1 was aware at the time she responded to the email
that SE performed the best among the applicants and would be recommended for selection.
Since INT1 was a mentor to SE, it seems reasonable that SE would reach out to INT1 for
assistance. Moreover, if the selection decision was made, INT1’s response to SE’s email is not
necessarily inappropriate.
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Lastly, even if we conclude that INT1 preselected SE for the SDO position, the preponderance of
the evidence does not establish that the preselection was motivated by discriminatory animus.

Lastly, Complainant asserts that his leave and attendance record was better than SE’s record
during the 2013-2014 time-frame. We assume this fact, but do not find it to be evidence of
pretext, since the record is devoid of evidence that leave and attendance were factors considered
by any rating or selecting official.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s finding that Complainant
failed to establish discrimination 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),
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

February 8, 2018
Date