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

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2021004599 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilfredo B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021004599 Hearing No. 480-2021-00266X Agency No. 1F-927-0108-20 DECISION On August 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 8, 2021 final action concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Electronic Technician at the Agency’s Santa Ana Processing and Distribution Center (P&DC) in Santa Ana, California. On October 19, 2020, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against him based on race (Caucasian), national origin (Slovenian), sex (male), color (White), age (67), and in reprisal for prior protected EEO activity (a number of prior 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. 2021004599 2 complaints filed between 2018 and 2020) when, on August 12, 2020, he was not selected for a Supervisor, Maintenance Operations (SMO) position. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a Notice of Intent to Issue a Decision Without a Hearing on April 15, 2021. Thereafter, the AJ issued a decision by summary judgment in favor of the Agency on June 28, 2021. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The Commission reviews disparate treatment claims, such as this one, by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant 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 Agency’s employment actions. See Furnco Constr. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us 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); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2021004599 3 Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we concur with the AJ’s conclusion that the responsible management officials articulated legitimate, non-discriminatory reasons for the selection decision and Complainant failed to prove, by a preponderance of the evidence, that these reasons were pretext designed to mask discriminatory or retaliatory motivation. The Manager, Maintenance (“Selecting Official”) (Asian, Filipino, brown, male, age 55)2 was the selecting official for the supervisor position. He explained that a Review Committee was initially responsible for reviewing each candidate’s application materials and refer the applicants they determined to be qualified for the position to him for an interview. Complainant was not one of the applicants who were referred to him by the Committee. The Review Committee’s chairperson (“R1”) (Caucasian, American, white, male, age 57) worked for the Selecting Official and also stated he was aware of Complainant’s prior EEO activity. He said there were two other Agency officials on the committee with him. He averred that the Review Committee’s role was to assess all applicants to determine if they met the selection criteria (“KSAs”) for the position on the vacancy announcement. R1 stated that each Committee member independently rated each of the nine KSAs for each applicant. Later, the Committee members came to a consensus rating for each applicant’s KSAs. If the Committee determined that an applicant did not meet the minimum qualifications under any one of the KSAs that applicant was not recommended to proceed to an interview with the Selecting Official. R1 averred that Complainant was not recommended by the Review Committee for an interview because he was judged not to meet KSA No. 7 (“Ability to estimate and forecast maintenance costs.”) because he provided no example of forecasting or estimating maintenance costs on his application. Mr. Moyer declared the instructions on the PS Form 5957 (Agency rating form for selections) stated, “if the applicant does not demonstrate any KSA at the minimum level, record a zero as the total point score, and do not consider or rate the applicant any further.” As such, Complainant was not referred for an interview. Five other applicants (three women and two men of varying ages, national origins and color) were considered to have established qualifications in all nine KSAs and were recommended by the Review Committee for interviews. 2 The Selecting Official stated that he was aware of at least some of Complainant’s prior EEO activity at the time of the selection. 2021004599 4 The Selecting Official interviewed all five applicants recommended to him by the Review Committee, as well as three other individuals3 who were already in supervisory positions who had requested a lateral transfer into the position at issue. Following the interviews, the Selecting Official chose one of the five applicants (“the selectee”) (female, Asian, Filipina, brown, age 51) recommended to him by the Review Committee as the best qualified candidate. The weight of the evidence affirms the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that he was not selected as a result of discrimination or retaliatory animus. While Complainant has claimed he was the best qualified candidate for the position, he conceded that he did not know much about the qualifications of the five applicants forwarded by the Review Committee for interviews. As such, we find that Complainant has not shown that any alleged disparities in qualifications between him and those selected for interviews were “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). We also agree with the AJ’s rejection of Complainant’s argument that he had been previously been found to satisfy KSA No. 7 in 2019, when he had applied for an earlier SMO vacancy and been interviewed but not selected. As the AJ noted, the selection panels were different, as well as the decision-making process in each panel. In sum, there is simply no evidence presented in the current selection to suggest the decision was tainted by discriminatory factors or retaliatory animus. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. CONCLUSION We AFFIRM the Agency’s final action adopting the AJ’s decision without a hearing, finding no discrimination. 3 One of these three individuals withdrew his name from consideration during the interview. 2021004599 5 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, 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). 2021004599 6 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 December 2, 2021 Date