Myra S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120171758 (E.E.O.C. Nov. 2, 2018)

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

Myra S.,1
Complainant,

v.

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

Appeal No. 0120171758

Agency No. 1K-231-0073-16

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 15, 2017, finding no discrimination
concerning her complaint alleging employment discrimination in violation of 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 worked as a Supervisor
Distribution Operations, EAS-17, at the Agency’s Richmond Virginia Processing and
Distribution Center, Sandston, Virginia.

On September 20, 2016, Complainant filed her complaint alleging discrimination based on age
(over 40) when on June 18, 2016, she became aware that she was not selected for the position of
Manager, Distribution Operations, MDO, on Tour 2. After completion of the investigation of the
complaint, Complainant requested a final Agency decision without a hearing before an EEOC
Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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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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 incident. At the time of events giving rising to the complaint,
Complainant was an EAS-17, Supervisor Distribution Operations.

The Agency indicated that it posted an EAS-20, MDO vacancy under Job Posting 10006162 with
the posting period of February 23 - March 9, 2016 (NB10005752). Complainant and seven other
applicants applied for the vacancy. The vacancy was subsequently canceled with no selection.
There is no indication the posting was cancelled for discriminatory reasons.

The Agency reposted an EAS-20, MDO vacancy under Job Posting 10016030 with posting
period April 12 – 27, 2016 (NB10015409). The record indicates that ten applicants applied for
this vacancy. There is no evidence that Complainant applied for this vacancy. The SO selected
the selectee (younger than 40), who was an EAS-17, Supervisor, Distribution Operations, for the
position. The SO stated that the selectee interviewed very well; she had been an Agency
employee since 2008; she displayed leadership qualities during the interview; and she elaborated
on previous experience as a leader in previous jobs held outside of the postal service. The
selectee also had the highest total Knowledge, Skills, and Abilities score among the interviewed
candidates.

Complainant indicated that she was more qualified than the selectee because she was in the
supervisory position for 30 years and she was detailed to an EAS-20, Acting MDO for about one
year. In her resume, Complainant acknowledged that she was actually detailed to the EAS-20,
Acting MDO position for five months. Complainant also acknowledged that it was the SO who
mentored her in that position. The selectee’s resume indicated that she too had the supervisory
and Acting MDO experiences, i.e., four years as an EAS-17, Supervisor, Distribution Operations
and three weeks as an EAS-22, Acting MDO.

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After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reason for the alleged nonselection. Even if Complainant had applied for the
second vacancy announcement, Job Posting 10016030, she failed to provide any evidence that
her qualifications for the position were plainly superior to the selectee’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 as she alleged.

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.
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).
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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

November 2, 2018
Date