[Redacted], Deandrea M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2020003719 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deandrea M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003719 Hearing No. 480-2019-00955X Agency No. 4F-920-0118-13 DECISION On May 12, 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 April 8, 2020, final decision concerning her equal employment opportunity (EEO) 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, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency properly determined that it did not subject Complainant to discrimination based on age when she was not selected for three Postmaster positions. 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. 2020003719 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services, at the Agency’s Cathedral City Post Office in Cathedral City, California. On November 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (YOB: 1958) when: 1. On or about July 22, 2013, she was not selected for the position of Postmaster, in Mecca, California; 2. On or about July 22, 2013, she was not selected for the position of Postmaster, in Thousand Palms, California; 3. On or about June 6, 2013, she was not selected for the position of Postmaster, in Thermal, California. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Prior to the withdrawal of Complainant’s hearing request, the AJ issued an “Order Granting the Agency’s Motion for Summary Judgment Regarding Claim 3 and Notice of Intent to Issue a Decision without a Hearing in favor of Complainant Regarding Claims 1-2.”2 On April 8, 2020, 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 her to discrimination as alleged. In the final Agency decision (FAD), the Agency found that Complainant established a prima facie case of age discrimination. Specifically, she established that she belongs to a protected class by virtue of her age; she applied and was qualified for the positions at issue; she was not selected for the positions; and individuals outside of her protected group were selected. The Agency also determined that management provided legitimate, nondiscriminatory explanations for their actions. For the Mecca, California position, the selecting official explained the selection process, stating that she and another Postmaster interviewed applicants chosen by a Review Board. She averred that Complainant scored lower on the Knowledge, Skills, and Abilities matrix and did not interview well. With respect to the Thousand Palms, California position, Complainant was not recommended for an interview based on the Knowledge, Skills, and Abilities scoring. Three candidates were interviewed, and the selectee earned the highest ranking overall. Finally, the Thermal, California position was filled when a Postmaster requested a downgrade. 2 Complainant does not contest the finding of no discrimination regarding claim 3. Therefore, we will not address this claim. 2020003719 3 In the FAD, the Agency further determined that Complainant failed to show that the Agency’s explanations were pretext for discrimination. The Agency found that Complainant offered no evidence or testimony to support her assumption that her qualifications were demonstrably superior or to disprove the reasons for her non-selections. CONTENTIONS ON APPEAL On appeal, Complainant contends that she was able to demonstrate that the scores given to the selectee were implausible and that the scores Complainant received were inconsistent with her extensive experience. Complainant relies on the AJ’s Notice of Intent to Issue a Decision without a Hearing Regarding Claim 1-2, asserting that the FAD fails to dissemble the AJ’s analysis of why the Agency’s reasons for not selecting Complainant were pretextual. Complainant maintains that she was more experienced and qualified than each of the selectees. In response, the Agency asserts that the Agency provided specific, clear, and individualized reasons for not hiring Complainant. In support, the Agency stresses that the selecting official and interviewer for the Mecca, California, position provided a substantive and objective explanation when she compared the interview responses of Complainant and the selectee. Regarding the Thousand Palms, California, position, the selecting official explained that Complainant and one other applicant tied for third place on the evaluation scale, so each of them was limited to one interview. 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 Employment Opportunity Management 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”). ANALYSIS AND FINDINGS Complainant may establish a prima facie case of discrimination in the non-selection context by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was not selected for the position; and (4) she was accorded treatment different from that given to persons otherwise similarly situated who are not members of her protected group, or in the case of age, who are considerably younger than she. Complainant v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002); Complainant v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). 2020003719 4 Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has 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). Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When a complainant alleges that he or she has been disparately treated by the employing agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's] age must have actually played a role in the employer's decision-making process and had a determinative influence on the outcome." Id. 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). In a selection case, a complainant can attempt to prove pretext by showing that his qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep't of the Treasury, EEOC Request No. 05950156 (May 9, 1996). Here, the selecting official for the Mecca, California position affirmed that the selectee performed better on the interview. Specifically, Complainant did not demonstrate that she had experience with rural carriers; did not demonstrate accurate knowledge of the Customs process; did not articulate the proper process for P.O. Box overflow; and did not demonstrate that she knew the proper amount of time parcels are left on the shelf after a delivery attempt. The selecting official affirmed that the selectee answered the majority of the questions asked, if not all, accurately while also demonstrating knowledge and experience with rural carriers, Customs, the P.O. Box overflow process, and parcel delivery attempts. Regarding the Thousand Palms, California position, the Chairperson of the Review Board affirmed that Complainant was not recommended for an interview based on the Knowledge, Skills, and Abilities matrix scorecard of applications. The Chairperson testified that the selectee’s application indicated that he was an Officer in Charge in his office and had turned the office around. There are no indications that Complainant’s age played a role in the non- selections at issue. In an effort to show pretext, Complainant notes that the AJ found her management experience exceeded that of the selectees for the Mecca, California and Thousand Palms, California positions. 2020003719 5 While the record supports Complainant’s extensive experience, the record does not demonstrate that the selectees were unqualified as Complainant asserts. We note that agencies have broad discretion to choose among equally qualified candidates if the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). We find that Complainant failed to demonstrate that the Agency’s proffered reasons for its selection decisions were a pretext for age discrimination. Accordingly, we find that Complainant failed to demonstrate that she was discriminated against as alleged. 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 final decision. 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. 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, 2020003719 6 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. 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. 2020003719 7 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 September 23, 2021 Date