0120160050
10-12-2016
Marlon H.,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
Marlon H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120160050
Hearing No. 570-2014-00406X
Agency Nos. 66-000-0008-13
66-000-0002-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 4, 2015 final action concerning the two captioned formal complaints that claimed unlawful 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
During the period at issue, Complainant worked as a Manager for the Agency's Radio Communications Systems in Columbia, Maryland.
Complainant filed two formal complaints on May 16, 2013 and January 30, 2014, respectively. Therein, Complainant alleged that he was subjected to unlawful retaliation for prior EEO activity when:2
1. on March 6, 2013, he was not selected for the position of Manager, Facilities Administrative Support (Agency No. 66-000-0008-13, hereinafter referred to as "Complaint 1");
2. since on or around March 6, 2013, he has not been afforded a detail assignment to the Manager, Facilities Administrative Support (Complaint 1);
3. on May 7, 2013, after applying for a second time, he was notified that the Agency made a decision to cancel the posting announcement for the Manager, Facilities Administrative Support position (Complaint 1);
4. on July 3, 2013, he was notified he was not selected for the Manager, Network Operations Technical Support position (Complaint 1);
5. on July 29, 2013, he was not afforded a detail assignment to the Manager, Network Operations Technical Support position (Complaint 1);
6. on August 13, 2013, he was not selected for the position of Mathematical Statistician position (Complaint 1);
7. on unspecified date, he was not selected for the position of Facilities Customer Relations Manager (Complaint 1);
8. on September 18, 2013, he was not selected for the position of Program Manager Information Technology (Job Posting No. 71770821) (Complaint 1);
9. on September 18, 2013, he was not selected for the position of Program Manager Information Technology (Job Posting No. 71770890) (Complaint 1);
10. on October 15, 2013, he was not selected for the position of Program Manager Information Technology (Job Posting No. 72699439) (Complaint 1);
11. on October 29, 2013, he was not selected for the position of Manager, Network Operations Technical Support (Job Posting No. 72062819) (Agency No. 66-000-0002-14, hereinafter referred to as "Complaint 2");
12. on October 29, 2013, he was not selected for the position of 1170-0014 Real Estate Specialist V-01 CO (Job Posting No. 73347939) (Complaint 2);
13. on November 19, 2013, he was not considered for the position of 0345-0003 Manager, Facilities Administration (Job Posting No. 73498758) (Complaint 2);
14. on October 23, 2013, he was not selected for the position of 2355-0049 Manager, Maintenance Operations (Job Posting No. 72145258) (Complaint 2);
15. on December 24, 2013, he was not selected for the position of 2210-0131 Manager, Requirements and Test Planning (Job Posting 73106442) (Complaint 2);
16. on December 30, 2013, he was not selected for the position of 2210-0130 Systems Life Cycle Senior Engineer (Job Posting No. 73106250) (Complaint 2);
17. on January 8, 2014, he was not selected for the position of 1170-0020 Landlord Maintenance Program Manager (Job Posting No. 73905879) (Complaint 2);
18. on January 13, 2014, he was not selected for the position of 2210-0121 Business Systems Analyst Principle (Job Posting No. 72700422) (Complaint 2);
19. on February 4, 2014, he was not selected for the position of 2305-5203 Operations Specialist EAS-25 D (Job Posting No. 72700866) (Complaint 2);
20. on February 5, 2014, he was not considered for the position of 1170-0014 Real Estate Specialist V-01 (Job Posting No. 74425344) (Complaint 2);
21. on February 11, 2014, he was not considered for the position of 0034-0146 Program Manager Information Technology (Job Posting Nos. 74728912, 74654494 and 74263385) (Complaint 2);
22. on March 4, 2014, he was not considered for the position of 0345-5088 Facilities Programs Analyst EA (Job Posting No. 74834746) (Complaint 2);
23. on April 7, 2014, he was not considered for the position of 0334-0146 Program Manager Information Technology V-01 (Job Posting No. 75968040) (Complaint 2); and
24. on April 10, 2014, he was not selected for the position of 2315-0078 Lead Senior Manager Distribution Operations at the Detroit District (Job Posting No. 74606693)
(Complaint 2).3
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. The AJ consolidated Complaints 1 and 2. On August 25, 2015, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts:
With regard to claims 1 - 3, Complainant applied for a Manager, Facilities Administrative Support position at the Agency's Headquarters. The Manager, Facilities Program Management was the selecting official for the subject position. The Manager was not aware of Complainant's prior protected activity at the time. In his affidavit, the Manager stated that he interviewed Complainant for the subject position, and contacted Complainant's supervisor and asked her general questions about Complainant's performance. The Manager later determined that Complainant was found minimally qualified for the subject position and there was no selection made for the subject position.
The Manager acknowledged that during Complainant's interview, the Manager asked him if he would be interested in a detail opportunity. Specifically, the Manager stated "this is a standard question I asked applicants during the interview process, should a detail opportunity arise."
On March 19, 2013, the same position of Manager, Facilities Administrative Support was re-announced. However, the announcement was cancelled on May 7, 2013. The AJ noted that the Manager stated that following the announcement, he decided to cancel the posting because he was not certain that he needed both a Manager, Facilities Administrative Support and Program Manager, Facilities IT, in his unit.
Regarding claims 4 and 5, on May 3, 2013, the Agency posted a vacancy for a Manager, Network Operations Technical Support position for which Complainant applied. The Manager, Network Development and Support (Manager 2) was the selecting official for the subject position. In her affidavit, Manager 2 stated that she selected a named applicant for the subject position; however the applicant "declined therefore was 'not selected.'"
Further, Manager 2 stated that she did not select Complainant for the subject position because she felt that he was not best qualified for the job. Manager 2 stated that she then selected a named employee who was already working in the Network Operations Department as an Operations Specialist to serve in a detail assignment in the Manager, Network Operations Technical Support position. Manager 2 stated that she did not select Complainant to serve in the subject detail assignment because she felt he was not qualified.
Moreover, Manager 2 stated that she was not aware of Complainant's prior protected activity at the time.
Regarding claim 6, in July 2013, the Agency posted a vacancy for the position of Mathematical Statistician which Complainant applied for. The Manager, Cost Systems and Analysis (Manager 3) was the selecting official for the subject position. In her affidavit, Manager 3 stated that she chose the selectee for the subject position because he was best qualified. Specifically, Manager 3 stated that the selectee demonstrated high level knowledge and "superb technical skills while working his way up through the ranks. Due to his outstanding performance, he was promoted to an EAS 25 position in my function in May 2012."
Manager 3 stated that she did not select Complainant for the subject position because he did not meet the requirements. For instance the Manager stated that Complainant "did not have any formal education or working experience in statistical sample design, probability sampling techniques, statistical analysis, survey technology, etc." The Manager stated that during the relevant period she was not aware of Complainant's prior protected activity.
Regarding claim 7, Complainant applied for the position of Facilities Customer Relations Manager on August 13, 2013. A review committee was implemented to review the applications and recommend applicants to be interviewed by the selecting official. The Manager, Facilities Information Systems was the Chairperson of the review committee. While thirteen applicants applied for the subject position, five applicants were deemed at least minimally qualified for the position. Three of the five applicants were recommended for interviews. Complainant was one of the two minimally qualified applicants who were not recommended for the interviews because they did not have enough specific experience and in-depth skills required for the subject position.
Regarding claims 8, 9 and 10, on July 9, 2013, the Agency posted a vacancy for two positions for Program Manager, Information Technology for which Complainant applied. The Manager, Information Technology (IT) Portfolio was the selecting official for the two subject positions. The Manager, IT Portfolio stated that he selected two selectees because of their extensive work experience. Specifically, the Manager, IT Portfolio stated that the two selectees were working in IT positions when they applied for the subject positions.
The Manager, IT Portfolio stated that he did not select Complainant because he was not minimally qualified for the position because his application did not demonstrate he was minimally qualified in the Knowledge, Skills and Abilities (KSAs) requirement Number 1 "Knowledge of business solution system development at a level sufficient to direct and manger a functional area's related planning efforts and activities, and provide alternative solutions to business needs." The Manager, IT Portfolio further stated that in his application, Complainant did not mention any work experience in the area of IT, and instead focused primarily on his experience working in Maintenance and In-Plant Support.
Regarding claim 11, Complainant applied for a Manager, Network Operations Technical Support position on September 3, 2013. The Manager, Network Development and Support was the selecting official for the subject position. The Manager Network Development and Support stated that she did not select Complainant for the subject position because she had previously interviewed him for an identical position (claim 4) and could not conclude from the interview that he demonstrated the ability to manage and resolve complex technical issues which was an essential function of the subject position. Moreover, the AJ noted that the Manager Network Development and Support did not select a candidate for the subject position.
Regarding claim 12, Complainant applied for a Real Estate Specialist on October 9, 2013. The Manager, Facilities Planning was the selecting official for the subject position. The Manager, Facilities Planning stated that he selected the selectee for the subject position because she had extensive experience in the real estate department. Specifically, the Manager, Facilities Planning stated that the selectee's "experience more closely matched the requirements of the job. The complainant had no real state experience in his history at all."
Regarding claim 13, Complainant applied for the position of Manager, Facilities Administrative Support on October 15, 2013. A review committee was implemented to review the applicants' application packages and recommend the best qualified applicants for interviews. The review committee did not recommend Complainant for an interview because he received a score of 0 in their grading of Requirement 1 of the position. Complainant's application did not indicate his knowledge, skills, and experience related to Requirement 1 for the subject position. Moreover, the AJ noted the Agency made no selection for the subject position.
Regarding claim 15, Complainant applied for a Manger, Requirements and Test Planning position on September 24, 2013. The Manager, Solution Development and Support was the selecting official. The Manager, Solution Development and Support selected the selectee for the subject position because of her strong background in systems life cycle development, requirements development, requirements planning and application testing.
The Manager, Solution Development and Support stated that he did not select Complainant because his application "did not adequately demonstrate the required skills and experience required by the job posting particularly in the areas of life cycle development, requirements planning and testing."
Regarding claim 16, Complainant applied for the position of Systems Life Cycle Senior Engineer on September 24, 2013. The Manager, Solution Development and Support was the selecting official. The Manager, Solution Development and Support stated that he did not select Complainant because his application did not adequately demonstrate the skills and experience required for the position, particularly in the areas of life cycle development, requirements planning and testing. Moreover, the AJ noted that there was no selection made for the subject position.
Regarding claim 17, Complainant applied for the position of Landlord Maintenance Program Manager on November 12, 2013. The Manager, Repair and Alteration (Manager R&A) was the selecting official for the subject position. The Manager R&A selected the selectee for the subject position because she had been a top performer in the Facilities organization since 2000. The Manager R&A stated "as the Manager, Facilities Requirements, [selectee] was responsible for financial analysis regarding consolidation of Postal real estate holdings. [Analysis] include incorporating broker's opinions of value to drive decisions on whether to sell or terminate leases on excess properties."
The Manager, R&A stated that he did not select Complainant because he was not qualified for the subject position.
Regarding claim 18, Complainant applied for the Business System Analyst Principal position on September 11, 2013. The Manager, Product and Payment Technology was the selecting official. The record reflects essential functions of the subject position included customer relations, responsibility for business information systems which required IT knowledge and experience, and analysis of data using statistical techniques. The Manager, Product and Payment Technology stated that while Complainant "did not minimally meet the qualifications of the position," she did not select any of the applicants for the subject position.
Regarding claim 19, Complainant applied for an Operations Specialist position on September 3, 2013. The Director, Policy & Planning/Chief of Staff, National Security (Director) was the selecting official. The Director stated that she implemented a review committee to evaluate the applicants' application packages. The Director stated that the review committee recommended five applicants, including Complainant, for consideration.
Further, the Director stated that she selected the selectee for the subject position because he met all of the Knowledge, Skills, and Abilities (KSAs) and answered all of the Situation, Task, Action, Result (STARs) questions and "had an excellent interview through articulated examples of behavior/performance-based questions." Moreover, the Director stated that she did not select Complainant for the subject position because he was not best qualified.
Regarding claim 20, on February 5, 2014, Complainant was not considered for the position of Real Estate Specialist. A review committee was implemented to review the applicants' application packages and recommend the best qualified applicants for interviews. The review committee did not recommend Complainant to the selecting official because he did not have any experience in the field of real estate. Moreover, the AJ noted the Agency made no selection for the subject position.
Regarding claim 21, Complainant applied for the positions of Program Manager, IT on December 10, 2013 and January 14, 2014. The record reflects that there were three different Program Manager, IT positions for which Complainant applied for. Three different review committees reviewed Complainant's applications but he was not recommended because he was not qualified for the subject positions.
The Program Manager stated that he was the Chairperson of the first review committee. The Program Manager stated that after evaluating the applicants' application packages, the committee recommended other applicants for the subject position based on their high scores. The Program Manager stated that Complainant was not recommended "based on three other candidates scoring higher than he did." The AJ noted that there was no selection made for this position.
The Manager, Information Technology Quality Assurance (ITQA) was the Chairperson of the second review committee. The Manager ITQA stated that the review committee did not recommend Complainant for consideration because he did not meet "at least minimal qualifications for all requirements." Specifically, the Manager ITQA stated that Complainant did not meet the requirement number 8 "knowledge of contact center technology to design, engineer, and manage the technical requirements for the state of the art contact centers."
Another Program Manager stated that he was the Chairperson of the third review committee. The Program Manager stated that the review committee did not recommend Complainant to be interviewed for the subject position because he "demonstrated no qualification for ability to develop and manage a business case to justify information systems project funding or ability to manage teams of employees engaged in complex projects and initiatives to meet customer business information systems needs."
Regarding claim 22, Complainant applied for a Facilities Program Analyst position on January 21, 2014. The Manager Facilities Information Systems was the Chairperson of the review committee and that the committee did not recommend Complainant for consideration because he scored a 0 on requirements 1 and 4 of this subject position. Specifically, the Manager, Facilities Information System stated that Complainant "did not meet the requirements of the job and was not recommended by the Review Committee. He uses the same application over and over, and in addition to not meeting the requirements he also has many mis-spelled words in his package and writing skills are a requirement of the job. He also uses the same KSA answers for every position he applies to that I have seen."
Furthermore, the Manager, Facilities Information Systems stated that other applicants were also not recommended for interviews because they scored 0s in some of the subject position's requirements.
Regarding claim 23, Complainant applied for a Program Manager Information Technology on March 11, 2014. The Program Manager stated that he was the Chairperson of the review committee. The Program Manager stated that the committee did not recommend Complainant to be interviewed for the subject position because other applicants scored higher than he did. Furthermore, the Program Manager stated that the selectee was selected for the subject position because he possessed experience in the field of IT.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case that unlawful retaliation was a motive in any of the allegations at issue. Moreover, even if he had, the AJ determined that the responsible management officials articulated legitimate, non-discriminatory reasons for the non-selections. Beyond his mere speculation, the AJ determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. On appeal, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Therefore, we find that the AJ's findings of fact are properly based on the evidence developed during the investigation. This evidence fully supports the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for Complainant's non-selections. After careful review of the record, as well as the arguments presented on appeal, we conclude that the AJ did not err in concluding that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask any motivation resulting from retaliatory animus.
The Agency's final action implementing the AJ's decision without a hearing, finding no unlawful retaliation was proven, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
October 12, 2016
__________________
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 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-24.
3 The record reflects that during the investigation of his claims, Complainant withdrew claims 14 and 24.
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