Otis B., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jul 27, 2017

0120151677 (E.E.O.C. Jul. 27, 2017)

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

Otis B.,
Complainant,

v.

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

Appeal No. 0120151677

Agency No. 1G-336-0075-14

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 9,
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. Our review is de novo. 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 Maintenance
Mechanic, MPE-09, at the Agency’s Processing & Distribution Center in Fort Myers, Florida.

On August 7, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Caucasian), national origin (American), sex
(male), sexual orientation, and in reprisal for his prior protected EEO activity under Title VII
when:

1. In February 2013, Complainant was removed from his detail as a higher level Acting
Supervisor and denied the opportunity for career advancement; and

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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2. Since June 2014 and continuing, including June 26, 2014 and July 12, 2014,
Complainant was not given the opportunity to apply for, nor be promoted to available
Supervisor, Maintenance positions.

The Agency initially dismissed the complaint on August 18, 2014, on the grounds that
Complainant failed to file his formal complaint in a timely manner. On November 19, 2014, the
Agency rescinded its final decision and accepted the entire complaint for investigation. On
November 26, 2014, the Agency reiterated its acceptance of claim (2) for investigation, but it
dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant
failed to initiate contact with an EEO Counselor in a timely manner. The Agency stated that
Complainant’s initial EEO contact on June 25, 2014, was at least 483 days after the alleged
incident in claim (1), and thus after the expiration of the 45-day limitation period.

At the conclusion of 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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. In addressing claim (2), the Agency noted that Complainant claimed
that he became aware in late May 2014 that a Maintenance Supervisor position was available but
that it was too late to submit an application for the position. Complainant stated that the position
was awarded to the selectee (Hispanic, male) on or about June 26, 2014. The Agency stated that
this Supervisor, Maintenance Operations, EAS-17, position was open for application from May
13, 2014 through May 28, 2014.

Complainant claimed that another Maintenance Supervisor position became available but he was
not aware of its availability until a Supervisor informed the group in a meeting that the selectee
(Hispanic, female) had received the position in July 2014. The Agency stated that this
Supervisor, Maintenance Operations, EAS-17, position was open for application from May 20,
2014 through June 4, 2014.

The Agency explained that both positions were posted District-wide and open to all career
employees assigned within the District of the vacancy office who wished to apply. The Agency
noted that the “How to Apply Section” stated that eligible employees may apply on-line via the
Internet at the Agency website by going to the eCareer location. The Agency stated that
Complainant was on a distribution list for a listing of Suncoast District positions from Level 11-
Level 20. The Agency noted that the selecting official, the Manager, Maintenance, stated that on
the eAccess User Profile Report, it indicated Complainant received email notifications of all
posted Level 17 Supervisor of Maintenance positions as they became available.

The Agency determined that Complainant failed to set forth a prima facie case of discrimination
under the bases of national origin, race, and sex because he was not similarly situated to the
named comparators. The Agency pointed out that Complainant did not apply for the two
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positions at issue in contrast to the selectees who did apply for the positions. The Manager,
Maintenance explained that Agency rules do not allow any employee to be promoted who does
not apply for the position when it is posted for application. With regard to other comparators
cited by Complainant who received positions, the Agency stated that one comparator held a
different bid position than Complainant and she requested a downgrade to the Supervisor,
Maintenance position as opposed to Complainant who sought a promotion. As for the two other
comparators, the Agency pointed out that these individuals held a different bid position than
Complainant and they requested a lateral transfer. The Manager, Maintenance stated that a
transfer does not require completing an application as is required for a promotion.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for not selecting
Complainant. The Agency stated that Complainant did not apply for either Maintenance
Supervisor position. According to the selecting official, supervisory positions are posted in the
eCareer system for interested employees to apply and they must apply and address the
knowledge, skills and abilities for the position. The selecting official acknowledged that he was
unsure if he informed anyone about the open positions, but that it was common knowledge the
positions were posted, and that all employees were afforded the same opportunities to apply for
eCareer positions. With regard Complainant’s allegation that both of the selectees received help
in preparing their applications from the Maintenance Engineering Specialist, the selecting
official stated that applicants are encouraged to seek assistance when writing their profiles and it
is not considered preferential treatment. The selecting official stated that he did not assign
anyone to assist a particular applicant.

The Agency stated that Complainant attempted to establish pretext by arguing that the
Maintenance Engineering Specialist completed the application for the male selectee, and that his
application and experience were superior to those of the female selectee. Complainant claimed
that reprisal and his sexual orientation were factors in him not being informed of the open
positions and that there was no legitimate reason for him not being provided this information.
The Agency rejected Complainant’s arguments, largely relying on the aforementioned reasons of
Complainant not applying for the positions and him not being prevented from applying for the
positions.

The Agency’s final decision found that Complainant had not been discriminated against.
Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that in January 2013, he supervised 42 employees as the
Acting Maintenance Supervisor. Complainant points out in contrast that the male selectee
assisted a regular Supervisor with his duties. Complainant states that unlike the male selectee, he
has three years of relief supervisor experience and several years of experience with the
scheduling software utilized to assign jobs to employees. Complainant maintains that unlike
him, the male selectee was informed of the Maintenance Supervisor position’s availability.
Complainant points out that the Maintenance Engineering Specialist, who he claims completed
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the job application for the male Hispanic selectee, works very closely with the selecting official.
As for the dismissal of claim (1), Complainant states that he spoke to an EEO official within the
requisite time frame and claims that he has been subjected to a continuing violation.

In response, the Agency asserts that Complainant failed to establish a prima facie case of
discrimination with respect to each of his claims. The Agency maintains that assuming arguendo
Complainant set forth a prima facie case of discrimination, it nevertheless presented a legitimate,
nondiscriminatory explanation. The Agency argues that Complainant did not present evidence
that its explanation was pretext intended to mask discriminatory intent.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires that complaints of discrimination be
brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action.

The United States Supreme Court has held that discrete acts such as hiring, firing, and
promotions that fall outside the limitations period are not actionable. Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002). Even if the discrete acts are arguably related to other
discriminatory acts that occurred within the filing period, they are not actionable if untimely
raised. Id. at 113. Nonetheless, the prior acts may be considered as background evidence to
support a timely claim. Id., see also EEOC Compliance Manual 915.003, Section 2: Threshold
Issues, at 2-IV.C.1.a. (rev. July 21, 2005).

Claim (1) addresses the removal of Complainant from a detail as a higher level Acting
Supervisor in February 2013. Complainant did not initiate contact with an EEO Counselor until
June 25, 2014, over a year after the alleged incident and clearly after the expiration of the 45-day
limitation period for initiating contact with an EEO Counselor. Complainant has offered no
evidence to support his claim that he timely contacted an EEO official. The nonselections at
issue in claim (2) and the removal from a detail in claim (1) are discrete acts and do not
constitute a continuing violation. We find that Complainant has not submitted adequate
justification for an extension of the 45-day limitation period with regard to his removal from the
detail. However, we will consider the removal from the detail as background evidence.
Accordingly, the Agency’s dismissal of claim (1) is AFFIRMED.

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. To establish a prima facie case of reprisal, Complainant must show that: (1) he
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
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subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists
between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

With regard to claim (2), we shall assume arguendo that Complainant established a prima facie
case of discrimination under each of the alleged bases. The Agency stated that Complainant
failed to apply for each of the two Maintenance Supervisor positions at issue. The Agency
pointed out that it was common knowledge vacant positions were posted online in the eCareer
system. Complainant received email notifications of all posted Level 17 Supervisor of
Maintenance positions as they became available and Complainant was not prevented from
applying for the positions. We find that the Agency has presented legitimate, nondiscriminatory
reasons for Complainant’s nonselections.

Complainant maintains that he should have been selected for either one of the Maintenance
Supervisor positions in light of his experience. Complainant argues that the selectees were
favored to his detriment as they were informed of the positions’ availability and he was not.
Complainant also charges that management favored one of the selectees by assisting him in the
completion of his application. We acknowledge that Complainant has experience and
qualifications that would usually merit consideration for a Maintenance Supervisor position.
However, he did not apply for either of the positions. It is not logical to conclude that he, as a
non-applicant, should have been selected rather than someone who applied for the position. We
are not persuaded by Complainant’s argument that the selectees learned of the vacant positions
and he did not. The Agency stated that it was common knowledge that such positions were
posted on the eCareer online system and that therefore Complainant had the opportunity to see
these positions were available and to apply for the positions. As to the assistance provided to the
selectees in the preparation of their applications, we note that the selecting official stated that
applicants are encouraged to seek assistance when writing their profiles and it is not considered
preferential treatment. We discern no discriminatory intent toward Complainant in the provision
of application assistance or any of the other procedures that the Agency utilized in the selection
process. We find that Complainant failed to establish that the Agency’s reasons for his
nonselections were pretext intended to hide discriminatory intent.

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CONCLUSION

The Agency’s dismissal of claim (1) on the grounds of untimely EEO Counselor contact is
AFFIRMED. The Agency’s determination that no discrimination occurred as to claim (2) 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.
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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

July 27, 2017
Date