0120171831_0120172056
06-12-2018
Samuel C.,1 and Bill M., Complainants,2 v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Samuel C.,1
and
Bill M.,
Complainants,2
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal Nos. 0120171831 and 0120172056
Hearing Nos. 560-2015-00238X and 560-2015-00210X
Agency Nos. 4J-630-0013-15 and 4J-630-0011-15
DECISION
On April 24, 2017, Complainant 1 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 13, 2017 final order concerning his equal employment opportunity (EEO) complaint alleging 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. On May 24, 2017, Complainant 2 filed an appeal with the EEOC from the Agency's April 27, 2017 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII.
BACKGROUND
At the time of events giving rise to this complaint, Complainant 1 worked as a Body and Fender Repairman, Level 9, at the Agency's Vehicle Maintenance Facility in St. Louis, Missouri. Complainant 2 worked as a Mechanic, level 8, at the same facility. Both Complainants applied for the position of Supervisor of Vehicle Maintenance (Level 17) under Vacancy Announcement No. 80183222. The Agency also posted an announcement for a second Supervisor of Vehicle Maintenance position under Vacancy Announcement No. 80183404.
On January 21, 2015, Complainant 1 filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on November 1, 2014, he was not selected for either of the two supervisory positions under Vacancy Announcement Nos. 80183222 and 80183404.
On January 12, 2015, Complainant 2 filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in retaliation for prior EEO activity when on November 1, 2014, he was not selected for a Supervisor of Vehicle Maintenance position.
At the conclusion of the investigations, the Agency provided each complainant with a copy of their respective reports of investigation and notices of their right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant 1 and Complainant 2 timely requested hearings. Both matters were assigned to the same AJ.
In the matter regarding Complainant 1, the AJ assigned to the case granted the Agency's January 15, 2016 motion for a decision without a hearing. The AJ noted that Complainant 1 was provided with an extension for file his response to the Agency's motion, but failed to file any response. The AJ issued a decision by summary judgment in favor of the Agency on April 7, 2017. The AJ held that there were no material facts in dispute.
In the matter regarding Complainant 2, the AJ assigned to the case granted the Agency's March 28, 2016 motion for a decision without a hearing. The AJ noted that Complainant 2's attorney had been disbarred in February 2016. The AJ provided Complainant 2 with an extension to find new counsel and for him to respond to the Agency's motion. Complainant 2 obtained new counsel in September 2016. On November 11, 2016, Complainant filed his response. The Agency filed its reply on November 22, 2016. The AJ issued a decision by summary judgment in favor of the Agency on April 19, 2017. The AJ held that there were no material facts in dispute.
We note that the cases involved the same promotions and decision making processes. The statement of undisputed facts was similar in both cases. The AJ noted that four candidates (both complainants and two Caucasian candidates) applied for the position listed under Vacancy Announcement No. 80183222. The Manager (Caucasian) was the selecting official for Vacancy Announcement No. 80183222. He appointed a Review Committee consisting of Reviewer 1 (Caucasian) and Reviewer 2 (African-American), who were Agency managers of vehicle maintenance in surrounding districts. The Reviewers and the Manager reviewed the four applicants for the position. They rated each application package. Further, the Review Committee conducted interviews of the four applicants. Based on the sum of all scores, Complainant 1 was rated third of the four candidates with a score of 105. Candidate 2 was rated fourth of the four candidates with a score of 102. The Selectee (Caucasian) received the highest score total of 158 and the remaining applicant received a total of 129.
As for the position listed in Vacancy Announcement No. 80183404, the AJ noted that a Supervisor of Transportation (African-American, unknown prior protected activity) ("Supervisor") asked for a transfer to one of the posted Vacancy Announcements to care for family. The Agency provided the Supervisor with the position listed in Vacancy Announcement No. 80183404 as a noncompetitive lateral transfer.
Based on these findings of undisputed facts, the AJ's decisions provided similar analysis of the claims of discrimination alleged by Complainant 1 and Complainant 2. The AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions. As for Vacancy Announcement No. 80183222, the Agency chose the Selectee over Complainant 1 and Complainant 2 because the Selectee was the highest scoring candidate based on his work experience, interview and matrix ratings. Further, the AJ determined that the Agency chose to provide the Supervisor with the position listed in Vacancy Announcements No. 80183404 as a noncompetitive lateral transfer pursuant to the Supervisor's request. The AJ then turned to Complainant 1 to establish that the Agency's reasons were pretext for race based discrimination. The AJ found that Complainant 1 presented no such arguments. As for Complainant 2, the AJ noted that he did not contest that he was not ranked highly enough to be selected over Selectee for the position. Complainant 2 argued that he was treated less favorably than other employees who were provided with noncompetitive transfers. However, the AJ determined that Complainant 2 failed to show he was singled out because of his race and/or prior protected EEO activity. Therefore, the AJ concluded that Complainant 1 and Complainant 2 failed to establish that they had been subjected to discrimination in violation of Title VII as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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. 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). Upon review of the record, we find that the AJ correctly determined that the Agency provided legitimate, nondiscriminatory reasons for its actions which Complainant 1 and Complainant 2 failed to show were pretext for discrimination in violation of Title VII.
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 actions implementing the AJ's decisions finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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 12, 2018
__________________
Date
1 This case has been randomly assigned pseudonyms which will replace Complainants' names when the decision is published to non-parties and the Commission's website.
2 As both complainants' allegations of discrimination arise from the same factual background, we have consolidated their appeals into one decision. See 29 C.F.R. � 1614.606.
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0120171831
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0120171831 & 0120172056