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

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2021001027 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eldon P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001027 Agency No. 4B-070-0055-20 DECISION On November 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant, a Laborer Custodial at the Agency’s Dumont Post Office, New Jersey, was an applicant for the Building Maintenance position at the Agency’s Northern New Jersey District. On March 26, 2020, Complainant filed the instant formal complaint, Complainant claimed that the Agency discriminated against him based on age (over 40) when, on November 6, 2019, he became aware that he was not selected for the Building Maintenance position. Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued the instant final decision on October 15, 2020, finding no discrimination. This appeal followed. 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. 2021001027 2 ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Center v. Hicks, 509 U.S. 502 (1993). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed selection decision. Complainant worked as a Laborer (Custodial) at the Agency’s Dumont Post Office, New Jersey. Complainant applied for the Building Maintenance position at the Agency’s Metro location. Thereafter, Complainant created an ePostal Assessment account and registered to complete Exam #955, Maintenance Selection System, as part of his application. After taking the test on May 21, 2019, Complainant was informed via his online account that he had passed the test. On June 18, 2019, a Human Resources (HR) Specialist emailed Complainant to set up an interview for the position. Complainant was interviewed for the position by a four-member panel. On June 28, 2019, Complainant obtained access to the ePostal Assessment system and learned that he was found ineligible for the position. He asserted that the initial job posting did not include any specific qualifications or requirements, and that he was eligible for the position. The record reflects that Complainant filed a grievance stating that the initial job posting did not include any specific qualifications or requirements, and that he was eligible for the position. As a result, Complainant and the Agency entered into a settlement agreement dated October 7, 2019, in which Complainant would have a new interview by a three-member panel from those who conducted his original interview on June 26, 2016, and the results of Complainant’s new interview would be combined with his original test results. On November 6, 2019, Complainant had the second interview for the position with a three- member panel. The Maintenance Manager (“Manager”) (over 40) served on the interview panel for the position. The Manager explained that maintenance had a different method for hiring, in which the panel asked a set of standard questions and used a matrix to score each answer between 1 and 5, with 5 as the highest score. The Manager stated that the panel members, which included the Lead Maintenance Manager for Engineering and another HR Specialist (“HR Specialist 2”), scored the candidates individually and submitted their scores to HR. The Manager asserted that the panel did not make the decision to select Complainant. 2021001027 3 Complainant asserted that during the interview, the Manager raised his voice, leaned over the desk toward him and accused him of providing some incomplete answers and being “disrespectful” to the interviewers. The Manager stated that while he did not recall using the word “disrespectful,” he admitted to telling Complainant that some of his comments to the panel were “out of line.” Furthermore, the Manager noted that during Complainant’s interview, he was surprised by Complainant’s attitude and he had to ask Complainant to take his leg off the table. He stated that Complainant was very negative and made a comment that the interview was “rigged” and that it was a waste of his time. HR Specialist 2 (over 40) stated that she was one of the three-member panel. She explained that she did not make the decision to select or not select Complainant, and that Complainant’s scores were entered into ePass and the system generates an eligible or non-eligible results. HR Specialist recalled at one point when the panel asked Complainant about his relationship with management, he responded that he filed a grievance in his previous office. She noted that Complainant made a comment that he did not agree with the result because he did not win and was unhappy. Complainant felt that his supervisor should have done the job that he was asked to do. Moreover, HR Specialist 2 stated that it was one of the most professionally conducted interviews she had been part of. Specifically, she stated that it was “very smooth” and no one on the panel had a loud tone or showed anger. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these legitimate proffered reasons for the selection decision was a pretext masking discrimination based on age. In addition, Complainant did not allege any comments concerning his age and that the record is void of any other evidence indicating that management took any action because of his age. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021001027 4 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. 2021001027 5 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 June 8, 2021 Date