[Redacted], Bret B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jan 24, 2022

Appeal No. 2021000606 (E.E.O.C. Jan. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bret B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021000606 Agency No. 4C-150-0015-20 DECISION On October 29, 2020, 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 29, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Relations Specialist at the Agency’s Process and Distribution Center in Pittsburgh, Pennsylvania. He has a prior EEO complaint against the Agency, specifically naming his former manager (Manager 1), currently retired. Complaint File at 125. In September 2019, Complainant applied for the position of Manager, Learning Development and Diversity. Id. at 171. The requirements for the position included training principles and technology; data analysis of training, diversity methods and practices, and career barriers; management of necessary training software; and management experience. Id. at 128, 225. 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. 2021000606 2 Complainant believed that his skills and experience matched “very favorably” to the positions Knowledge, Skills, and Abilities (KSAs) for the position. Specifically, he cited his training development and delivery skills, as well as his interpersonal skills on complex issues such as reasonable accommodations. Id. at 129. Complainant was interviewed for the position. Id. at 73. The selecting official of the position (Manager 2) ultimately selected Selectee. Id. at 73. Manager 2 chose Selectee because she had a Bachelor of Science in education; and she was a certified test administrator, facilitator trainer, and interviewer. Id. at 73, 306, 308. Manager 2 found Selectee to be confident and well-prepared for each interview question, noting that she had detailed answers as to continuous improvements she would make in training. Manager 2 determined that Selectee separated herself from the other interviewees with her engagement and energy. Id. at 73. Manager 2 found Complainant’s interview good but lacking in detailed responses. Manager 2 found, additionally, that Complainant was unfamiliar with the Hero platform and the Randolph-Shepard Act. Id. at 74, 175. Manager 2 noted that Complainant focused on training throughout the entire interview, but the position entailed more than training. Id. at 74, 175, 333. Complainant obtained a score of 22 on the selection matrix, Selectee scored 24. Id. at 339. Complainant believed Selectee did not have the management experience that he had. He asserted that he had taken over a department having difficulties and trained and developed the staff that went on to be promoted. Id. at 131. Manager 2 countered that Selectee had specific knowledge that made her the best qualified for the position. Specifically, Selectee was extremely knowledgeable about the Hero system and had built her Hero profile; she took on management responsibility in her original position to learn the position in question; she was a certified interviewer; and she had been featured in the Agency newsletter for her engagement with new employees. Id. at 174. Manager 2 stated that Selectee’s KSAs “far exceeded” Complainant’s. Id. at 176. Complainant stated that he believed that his age was a factor in his not being hired. He alleged that there was a concern that he could retire sooner than a younger person, with additional concern of retirement due to age; he, himself, made clear that he would have stayed in the position he sought for no more than three years. Id. at 132. Manager 2 at the time of the selection stated that his age was not a factor, she was not aware of his medical condition, and that she was not involved in his prior EEO activity. Id. at 170. She was also unaware of Selectee’s age, disability status, or prior EEO activity status. Id. at 177. Complainant also alleged that he made numerous attempts to be trained but was denied those opportunities. Id. at 141. Manager 1 asserted that this was due to operational need. Manager stated that, at the time Complainant made the request, he was unable to detail anyone to another department that did not have an opening, and that no openings were existent at that time. Complainant was not the only employee to be affected by this. Id. at 233. Complainant countered Manager 1 had detailed other employees. 2021000606 3 Complainant did not identify any individuals in his position that were detailed. Id. at 140. Complainant was offered a detail July 11, 2019, to begin on July 20, 2019, but declined the detail for personal reasons. Id. at 76, 132, 188. On January 9, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (anxiety), age (59), and in reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 Section 501 of the Rehabilitation Act of 1973 when, on October 17, 2019, he was not selected for the Manager, Learning Development and Diversity position. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. Neither Complainant nor the Agency filed a brief in support of or in opposition to the appeal. ANALYSIS AND FINDINGS Standard of Review 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 Emp. Opportunity Mgmt. Directive for 29 C.F.R. Part 1614, at Chapter 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). 2021000606 4 Once the Agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The Commission will assume, arguendo, that Complainant established a prima facie case of discrimination and retaliation. In the instant case, the Agency has articulated a legitimate, non- discriminatory reason for its actions. With regard to non-selection, the Agency hired Selectee and provided the rationale that Selectee was the best qualified for the position. She scored the highest on the decision-making matrix. The Agency contrasted Complainant with Selectee by noting that Selectee had a Bachelor of Science degree in education; she answered each question with certainty, to include continuous improvements she would make in training; and she had knowledge of specific platforms that were required for the position, including Hero. Complainant did not have a bachelor’s degree in education, nor did he have knowledge of the systems that Selectee had. As such, we find that the Agency has articulated legitimate non-discriminatory reasons for their decision. The burden now shifts to Complainant to persuade the Commission by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr., 509 U.S. at 502. Upon review, we find that Complainant failed to establish that the Agency's articulated reason for Complainant's non-selection was pretext for discrimination. The complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256. When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the Selectee. Hung P. v. Dep't of Veteran Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Complainant claimed that Selectee had less management experience than he had. Yet, Selectee’s resume indicates that she has management experience. The Commission has found that number of years of experience does not establish an applicant’s qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). Additionally, as outlined above, Selectee had training and knowledge of programs that Complainant did not, notably Hero. She also had a bachelor’s degree in education, graduating summa cum laude, which Complainant does not. As such, the Commission finds that Complainant’s qualifications were not plainly superior to Selectee’s. The Commission has previously found that an Agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Serv., EEOC Appeal No. 0120110338 (Mar. 23, 2011), citing Burdine, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin Coll., 555 F.2d 1057, 1061 (6th Cir. 1981). 2021000606 5 Complainant further alleged that he made numerous attempts to secure details to gain the necessary skills to obtain a position such as the one advertised. The evidence indicates that complainant made numerous requests for details, but Manager 1 specifically indicated that he was not able to detail anyone from the department and other people in Complainant’s department were also impacted. Complainant alleged that Manager 1 said he would not detail people to a lower level detail, but this has not been corroborated by anyone. Though Complainant provided the names of several people who were detailed to lower positions, none of these people occupied the same position as Complainant. Moreover, Complainant was offered a detail in June 2019, but he declined the detail because it did not comply with his required start time. As such, we find that Complainant has not demonstrated evidence, beyond opinion or assertion, that the Agency’s actions were a pretext to discrimination. To the extent that Complainant argued that the Agency pre-selected Selectee, the Commission has held that pre-selection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not on some prohibited basis. See McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). The Commission has found that even if pre-selection occurred, it would not be unlawful unless Complainant can show that the preselection was driven by discriminatory animus. See Nickens v. Nat'l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Although Complainant has alleged that the Agency acted discriminately, the record simply does not provide any evidence that the selection was motivated in any way by his disability, age, or prior EEO activity. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Burdine, 450 U.S. at 249. Therefore, we conclude that Complainant failed to establish his claim of discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s finding of no discrimination or retaliation in the case above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021000606 6 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021000606 7 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 January 24, 2022 Date