Neal O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 3, 2016

0120142955 (E.E.O.C. Feb. 3, 2016)

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

Neal O.,1
Complainant,

v.

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

Appeal No. 0120142955

Hearing No. 570-2012-00497X

Agency No. 6F-000-0007-11

DECISION

Complainant filed an appeal from the Agency’s August 1, 2014 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Requirements Analyst at the Agency’s Area Headquarters in
Merrifield, Virginia. On November 14, 2011, he filed an EEO complaint in which he alleged
that the Delivery and Retail Systems Manager, acting in her capacity as a Selecting Official
(SO) discriminated against him on the bases of race (African-American), age (51), and reprisal
(prior protected EEO activity). At the conclusion of the ensuing investigation, the Agency
notified Complainant of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but over his objections, the AJ assigned to the case granted the Agency’s October 28, 2013

1This 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.
0120142955

2
motion for summary judgment and issued a decision on July 18, 2014, without holding a
hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Complainant initially alleged that on July 18, 2011, he was notified by the SO that he had not
been selected for the position of Computer Systems Analyst (CSA), EAS-24. The names of
eight applicants appeared on the certification list sent to the SO, including Complainant’s. All
of the candidates were rated against the six selection factors outlined in the vacancy
announcement. Complainant and one other candidate received a score of 12, the third highest
overall. The top candidate was given a score of 15, but this individual had accepted another
position. The candidate with the next highest score, who was ultimately selected, received a
score of 13. Investigative Report (IR) 75-78, 86-88, 113-14, 116-17.

Complainant also alleged that on September 15, 2011, the SO had effectively removed him as
the lead on a “Lean Six Sigma” (LSS) project concerning automated hardware systems. He
averred that he had been working on the LSS project for two to three years when the SO
established the Automated Postal Center / Contract Access Retail System (APC/CARS), a
parallel project with identical goals that was headed by a younger white male colleague.
Complainant maintained that the SO’s action rendered his project superfluous. IR 67. The SO
responded that the other project had been established in September of 2009, and that the team
lead had been with that project since its inception. She also averred that Complainant’s LSS
project was a subcomponent of the APC/CARS, that the team lead remained the APC/CARS
Program Manager, that Complainant remained the project manager for LSS, and that there had
been no changes in rolls or assignments for either individual. IR 81, 167.

ANALYSIS AND FINDINGS

The Commission will not second-guess an Agency’s personnel decisions without evidence of a
discriminatory motivation on the part of the officials responsible for those decisions. See
Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Consequently, in order to warrant a hearing on his disparate treatment claim, Complainant
would have to present enough evidence to raise a genuine issue of material fact as to whether
the SO was motivated unlawful considerations of his race, age, or previous EEO activity in
connection with the decisions that led to this complaint being filed. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). He
can do so by submitting sworn statements or documents that raise a question as to whether the
SO’s articulated reasons for her decisions are pretextual, i.e., not the real reason but rather a
cover for discrimination or reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515
(1993) citing Burdine, 450 U.S. at 253.

In the nonselection context, evidence of pretext can take the form of a showing that
Complainant’s qualifications for the position were plainly superior to those of the Selectee.
Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721 (December 3,
2015). In the context of other personnel decisions, it can include discriminatory statements or
0120142955

3
past personal treatment attributable to the SO, comparative or statistical data revealing
differences in treatment across racial or age-related lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States
Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why he believed that the SO was motivated by considerations
of his race, age, and prior EEO activity, Complainant responded that the SO had been involved
in the settlement of his previous EEO complaint, that he was treated unfairly during the
interview for the position, and that both the selectee for the CSA position and the team lead for
the APC/CARS project were significantly younger white males. IR 64-66. Complainant’s
assertion appears to rest on the notion that the SO’s personnel decisions, in and of themselves,
are sufficient to raise a genuine issue of material fact as to her motives. This is simply not
true. Complainant must do more than establish a prima facie case of discrimination in order to
raise a genuine issue of material fact regarding those motives. He must produce evidence of at
least one of the indicators that the SO’s articulated reason for her actions vis-à-vis Complainant
was a pretext. But on this crucial issue, Complainant has not submitted any sworn statements
from other witnesses or documents that contradict the explanations provided by the SO, or
which call her veracity into question. With respect to the nonselection in particular,
Complainant has not shown that his qualifications were plainly superior to those of the
Selectee. Rather, the record supports the SO’s testimony that Complainant was one of a
number of qualified candidates, but that his application was not the strongest. IR 76. We
therefore find, as did the AJ, that no genuine issue of material fact exists with respect to the
SO’s motivation in connection the incidents that occurred on July 18 and September 15, 2011.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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:

0120142955

4
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, P.O. Box 77960, Washington, DC 20013. 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
0120142955

5
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 3, 2016
Date