Maynard G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Jun 20, 2018

0120162736 (E.E.O.C. Jun. 20, 2018)

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

Maynard G.,1
Complainant,

v.

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

Appeal No. 0120162736

Hearing No. 450-2015-00208X

Agency No. 6U-000-0004-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated July 26, 2016, finding no discrimination
concerning his 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. For
the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Business Alliances Specialist, EAS-23, in Fort Worth, Texas. On February 4, 2015,
Complainant filed his complaint alleging discrimination based on sex (male), age (over 40), and
in reprisal for prior EEO activity when on October 13, 2014, he received notification that he had
not been selected for the position of Sales Executive, Senior, Major Accounts (Mail), EAS-24.
After completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency then issued its

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.
0120162736

2
final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The record indicates that at the relevant time, Complainant
was a Business Alliances Specialist, EAS-23, in Fort Worth, Texas; and his position was
assigned to Headquarters Sales in Washington, D.C. Complainant claimed that on September 8,
2014, he submitted an electronic application via eCareer for the position of Sales Executive,
Senior, Major Accounts (Mail), EAS-24, which was assigned to Headquarters in Washington,
D.C. He was interviewed but was not selected for the position at issue.

The Selecting Official (SO) indicated that since there were only seven applicants for the position
at issue, no review committee was convened to evaluate the resumes. Instead, stated the SO, she
conducted the initial review of the application packets herself. The SO stated that two of the
seven candidates did not meet the minimum qualifications and five applicants, including
Complainant, were advanced to the interview stage. The record indicates that the SO and the
identified Sales Manager in Orlando, Florida, interviewed the applicants.

The SO stated that she was looking for the candidate who had ability to independently close sales
with high velocity. The SO indicated that she selected the selectee (SE) who was female, one
year younger than Complainant, and a Senior Sales Executive (Mailing), EAS-23, in Orlando,
Florida. The SO stated that she chose the SE because: the SE closed 51 sales as sales owner,
valued at $10.1 million while Complainant closed only three sales as sales owner, valued at $7.3
million; and the SE performed very well during the interview whereas Complainant did not do
well as he was not able to provide his current sale activities. The SO noted that during the
interview, Complainant expressed his desire to relocate from Fort Worth, Texas to Florida; and
when she told him it was not appropriate to discuss the subject matter during the interview, he
became argumentative, raised his voice, and told her that he could do the job from anywhere and
he should be permitted relocation if he was selected for the position.

0120162736

3
The record indicates that the applications were evaluated and were given numerical score for
seven different job requirements. The raw scores ranged from 7 to 20, and Complainant scored
16 and the SE scored 20. The interview responses were also scored which ranged from 6 to 16.
Complainant scored 6 on the interview and the SE scored 16. Total scores (application and
interview) ranged from 19 to 36. Complainant scored a total of 22 and the SE scored a total of
36.

The Sales Manager indicated that she and the SO interviewed the finalist candidates and asked
them the same questions in accordance with the Agency’s interview process. Specifically, the
Sales Manager, concurring with the SO’s statements, stated that during the interview,
Complainant would interrupt them when they were asking questions and appeared to be
combative, rude, and abrasive.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Complainant claimed that he had ten
years more experience than the SE in the EAS-23 position. However, there is no evidence that
more experience in the EAS-23 position was required for the position at issue. Furthermore,
Complainant failed to show that his qualifications for the position were plainly superior to the
SE’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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.
0120162736

4
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

June 20, 2018
Date