0120170324
07-25-2018
Rayford H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rayford H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120170324
Agency No. 1E-971-0010-16
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 22, 2016, final decision (FAD) 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that Complainant did not show that he was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Mail Processing Clerk at the Agency's facility in Portland, Oregon. On January 19, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him with regard to his assignment, and his nonselection for several positions. Complainant indicated that he believed he was subjected to discrimination because black men and those with disabilities were not treated fairly with regard to promotions and assignments. He also believed his sex was a factor because management had affairs with their subordinates and the subordinates were rewarded with promotions, relocations, and monetary compensation. In the instant complaint, Complainant alleged discrimination based on his race (African American), retaliation (prior EEO activity) and disability (mental), when:
1. On November 13, 2015, his detail to level 17 Maintenance Supervisor ended;
2. On January 4, 2016, he was not selected for the Supervisor Maintenance Operations EAS-17 position; and
Complainant alleged discrimination based on race, sex (male), and retaliation when:
3. On January 21, 2016, he was notified that he was not selected for the positon of Supervisor, Distribution Operations for the Portland District.
Complainant alleged discrimination based on race, sex, and retaliation when:
4. On or around April 7, 2015, he was not selected for the positon of Supervisor Maintenance Operations in the Portland District, job position 10009306.2
Complainant requested a final decision on the merits of the complaint. The FAD found with respect to claim no. 1, that Complainant did not establish a prima facie case of discrimination, as he did not show that any similarly situated employees were treated more favorably. The Agency explained that Complainant was placed in the detail so that he could gain experience for a supervisory position. The detail was not meant to be permanent and because Complainant was an Unassigned Regular Clerk and had not bid on a position, management was required to place him into an available residual position which required that he be enrolled in training.
With respect to the claim nos., 2, 3, and 4, the Agency maintained that, assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, it articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant applied for the positions but did not fully indicate how his accomplishments addressed the requirements of the positions he sought. For the questions he did not complete on the applications, he received zero points, which indicated no knowledge. Because Complainant did not fully complete the applications, he was not ranked high enough to garner an interview for any of the positions. The Agency compared Complainant to the selectees for the positions and found that each explained how what they did related to the positons they sought. As such, Complainant failed to demonstrate that he was qualified for the Supervisor Maintenance positions. The Agency also found that Complainant did not show that his qualifications were plainly or demonstrably superior to those of the selectees. To show pretext, Complainant maintained that it was very hard for Black employees to get ahead in the Portland District. The Agency found that Complainant's beliefs did not show that the Agency's nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he had to end his detail while other employees went unassigned and were not forced into a customer service position. He contends that management's attitude clearly showed that they did not have to follow any protocol and are not held accountable. Complainant maintains that management has been instrumental in denying promotional opportunities for at least two decades, especially to black men who file EEO complaints.
Further, Complainant contends that he was told that if he completed his training, he could return to his detail but when he went to get that in writing the Postmaster refused. Complainant maintains that in preparation for a management position, he has passed all supervisor qualifications including the 16-week supervisor certification program which exceeded the qualifications of the positon. He maintains that the District has made the promotion process completely subjective which means only those who are liked get promoted.
In response, the Agency requests that its FAD be affirmed, as it has articulated legitimate nondiscriminatory reasons for its actions and Complainant did not demonstrate that the reasons were pretext for discrimination.
ANALSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's detail was not permanent and when he did not bid on a position, management was required to place him into an available position which required that he be enrolled in training.
Further, he was not selected for one of the three positions that he applied for because he received zero points for several questions that he did not answer as required. This resulted in him not being considered for any of the positions. Complainant also did not show that he was so better qualified than the selectees that discrimination could be inferred. We find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination. Finally, with respect to Complainant's contentions on appeal, we find that other than his conclusory statements, he provided no evidence which demonstrated that discrimination occurred or that discriminatory animus was involved in the decisions. Therefore, we find that the preponderance of the evidence of record does not establish that discrimination occurred. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination.
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).
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
_7/25/18_________________
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 Complainant's complaint included seven other claims. The claims were dismissed for failure to state a claim. Complainant does not dispute the dismissal of these claims on appeal so they will not be addressed herein.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170324
5
0120170324