[Redacted], Sandy S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 14, 2021

Appeal No. 2020002511 (E.E.O.C. Jul. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandy S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020002511 Agency No. 4C-150-0057-19 DECISION On February 7, 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 January 7, 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. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against based on age, disability and prior EEO activity as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Relations Specialist at the Agency’s Western Pennsylvania District facility in Pittsburgh, Pennsylvania. On July 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental), age (58), and reprisal for prior protected EEO 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. 2020002511 2 activity under the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973, when on April 13, 2019, Complainant became aware that he had not been selected for the Manager, Labor Relations, 95437358, EAS-22 position, Vacancy Announcement number 10268920. Complainant alleged that he applied for the position at issue through e-Career. Complainant asserted that he was qualified for the position since he has forty years of service and seven years in Labor Relations; and that he has extensive knowledge of policies and agreements. Complainant detailed his work experience and asserted that there was no Review Committee for the position to which he applied. Complainant stated that he was interviewed for the position by the Selecting Official (SO) and another Manager (M1). Complainant indicated that he did not recall any specific question about his age being asked during the interview. Complainant however asserted that his forty years of service was discussed; and that the discussion indicated that he was in his late 50's or older. Complainant stated his belief that he was more qualified for the position than the successful candidate because he had a strong relationship with the Unions; and that at his requested interview follow-up meeting, SO allegedly stated that that candidate could not touch Complainant’s knowledge and experience. Complainant indicated that the reason SO gave for not selecting Complainant was that the successful candidate had experience with turning difficult offices around. Complainant disagreed with SO’s reason for selecting the successful candidate since, if turning offices around was an issue, it should have been asked about more thoroughly during Complainant’s interview. Complainant stated that he turned difficult offices around in the past and could have given good clear examples if asked about it during the interview. He stated that his previous experience included cutting 5 clerk bid positions in one of the operations he oversaw, saving the Postal Service $400,000 per year. Complainant stated that he has been successful in every position, operation, and work he has been tasked with. Complainant asserted his belief that his age was a factor when he was not selected for the position because he was retirement-eligible, so the fear was that if he was awarded the position he would retire shortly thereafter, leaving another void. Complainant did not explain why he believed that his disability was the reason for his non-selection. Complainant cited advice he provided to a coworker regarding filing an EEO complaint as the basis for his belief that his prior protected activity was a factor. SO stated that there was no need for a Review Committee for the position at issue since there were only five applicants. SO explained that M1 sat in on the interviews for the position; however, it was explained to all candidates that SO would be the sole decision maker for the position. SO asserted that Complainant was not the best candidate, the second best candidate, or possibly the third choice. SO noted that Complainant lacked demonstrated managerial skills in his application, experience, and interview. 2020002511 3 SO stated that during his interview, Complainant did not convey that he was knowledgeable of the Agency’s current conditions of grievances being backed up and the dissention amongst the Specialists, which was very disheartening. SO indicated that Complainant brought notes he received from other management officials concerning emails of labor issues that Complainant sent out weekly to the interview; however, the emails that Complainant sent, which were educational and informative, fell under the duties of a Labor Representative, not a management function. SO stated that Complainant's experience and background of managerial assignments were not as extensive as those of the selected candidate; and that the Agency needed a good manager that could get it back on course and be successful, which Complainant did not demonstrate. SO stated that the criteria used when he selected the successful candidate included the eCareer Candidate Overviews (applications), the interviews, and known job performance or references. SO explained that his statement indicating that the successful candidate could not touch Complainant’s knowledge and experience is misrepresented by Complainant. SO asserted that he told Complainant more than once that SO knew that Complainant was more knowledgeable about "labor relations" than the selected candidate; however, the Department needed a manager and the selected candidate had demonstrated more managerial experience than Complainant. SO asserted that Complainant had the opportunity to display his management skills from November 2018, until the position was filled in March 2019. However, all other Labor Specialists picked up extra duties to assist in the absence of the Labor Manager, but Complainant did not. SO noted that other Labor Representatives came up with a plan to split the territories more fairly, but Complainant requested a different territory and, when Complainant received it, he complained of the workload. SO also asserted that the number of disciplines Complainant wrote during that time paled in comparison to the others in the Department. SO stated that Complainant's age was not a factor in any decision SO made since all of the candidates, including the selected candidate were very close in age. SO denied awareness of Complainant’s prior EEO activity. 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. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted Appeal Statements. 2020002511 4 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 To prevail in a disparate treatment claim, a 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 initially 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, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, age and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s non-selection for the position to which he applied. Specifically, SO’s explanations indicate that Complainant failed to demonstrate the requisite managerial skills at his interview. In an effort to show pretext, Complainant cited discussions about his experience, statements made by SO during a follow-up meeting, and the closeness of his age to retirement as the reasons for his belief that his age was the basis for his non-selection. However, SO indicated that all candidates for the position at issue were within Complainant’s age group. The record also reflects that the selectee was 53 years old. Complainant himself indicated that age was not discussed at the interview. Complainant also cited advice he provided to a coworker as the reason for his belief that his prior EEO activity was a factor. However, SO asserted that he was unaware of that activity. Besides, SO stated that Complainant was given the opportunity to demonstrate his ability to perform in the position at issue before it was filled, but Complainant failed to do so. 2020002511 5 Complainant did not refute SO’s explanations which are corroborated by the record. Furthermore, Complainant did not present any evidence to support his allegations. Complainant also failed to show that his qualifications were plainly superior to those of the successful candidate, or that the selectee did not possess the qualifications attributed to him by the SO. Neither did Complainant challenge the selectee’s qualifications that were the reason for his non-selection; and it is not the intent of the Commission to substitute its judgment for that of the Agency where discriminatory motives have not been shown. Importantly, the Commission’s case law is replete with cases supporting the principle that, absent a showing that Complainant was the best-qualified candidate, management did not demonstrate discriminatory animus when the most qualified candidates were selected. See e.g. Judson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141750 (May 26, 2016) (declining to find a pretext of discriminatory action when the Complainant was not selected due to his application rating of five out of eight candidates); Whitfield v. Dep't of the Army, EEOC Doc. 0120082612 (July 11, 2012) (finding that the Complainant failed to show discrimination when the Complainant's qualifications were not plainly superior to the selectees for two separate postings); King v. Dep't of Veterans Affairs, EEOC Appeal No. 012022423 (Nov. 2, 2012) (Complainant was not ranked among the top candidates and presented no evidence of pretext). In sum, Complainant failed to show that his non-selection was based on his protected classes. As such, his claims fail, and his requested relief is not granted. 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. 2020002511 6 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. 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. 2020002511 7 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 14, 2021 Date