Sunday S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 17, 2016

0120151279 (E.E.O.C. Nov. 17, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sunday S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120151279

Agency No. 4C-190-0105-13

DECISION

On February 18, 2015, Complainant filed an appeal from the Agency’s January 22, 2015, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Employee
Assistance Program (EAP) Counselor at the Agency’s work facility in Philadelphia,
Pennsylvania.

On October 7, 2013, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African-American), sex (female),
and in reprisal for her prior protected EEO activity when:

1. On February 1, 2010, and July 2, 2010, until on or about July 12, 2010, she was
not allowed to act as the EAP Clinical Supervisor.

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.
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2. On June 12, 2013, the Agency’s Human Resources Manager did not inform her that
an EAP Clinical Supervisor, EAS-18, position vacancy announcement had been
posted.

In a partial dismissal dated October 25, 2013, the Agency accepted claim (1) and dismissed
claim (2) on the grounds of failure to state a claim. Subsequently, the Agency issued a final
decision wherein it dismissed claim (1) on the grounds of failure to initiate contact with an
EEO Counselor in a timely manner. Thereafter, Complainant filed an appeal with the
Commission. Complainant acknowledged on appeal that the events referenced in claim (1)
were untimely. However, Complainant argued that the Agency did not properly identify her
claim in claim (2). Complainant contended that her claim focused on her nonselection for the
Clinical Supervisor position.

In Complainant v. United States Postal Service, EEOC Appeal No. 0120141676 (September
12, 2014), we agreed that the complaint had been mischaracterized finding that claim (2)
concerned Complainant’s nonselection. Therefore, we reversed the Agency’s final decision as
to claim (2) and remanded the claim for further processing. 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). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The Agency noted that Complainant stated she was unaware of the
June 2013 posting for the Clinical Supervisor position because no one told her applications
were being accepted. Complainant asserted that the Manager, Human Resources, informed the
selectee (Caucasian, male) of the vacancy announcement. According to Complainant, she
learned of the vacancy announcement from the selectee but that by then the time had passed for
submitting an application. Complainant maintained that her qualifications are superior to those
of the selectee and that she would have applied for the position had she known of the open
application period. The Agency stated that there were seven applicants for the position and the
selectee was chosen effective July 27, 2013.

The Agency determined that Complainant failed to establish a prima facie case of reprisal.
The Agency reasoned that Complainant did not provide evidence of a causal link between
Complainant’s prior EEO activity and her nonselection. The Agency noted that it issued a
final decision on the prior complaint on November 22, 2010, which was more than two and
one-half years before the instant nonselection. The Agency determined that a causal
connection could not be inferred based on a lack of temporal proximity.

The Agency also determined that Complainant failed to set forth a prima facie case of race or
sex discrimination. The Agency stated that the selecting official chose the selectee from the
list of qualified applicants and Complainant was not included on the list of eligible applicants
because she did not apply for the position.
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Assuming arguendo Complainant established a prima facie case of discrimination under the
alleged bases, the Agency determined that it articulated legitimate, nondiscriminatory reasons
for Complainant’s nonselection. The selecting official asserted that the selectee was the only
candidate referred for an interview and she did not know if Complainant had applied for the
position. According to the selecting official, she chose the selectee for the Clinical Supervisor
position because he was qualified, had significant related experience, and during his interview
he demonstrated his knowledge of the requirements of the position and presented a plan for the
operation of the EAP activity. The Agency stated that the Manager, Human Resources, denied
informing any employee, including the selectee, that the position had been posted. The
Manager asserted that she was not aware of Complainant’s alleged interest in being considered
for the position.

The Agency noted that the Manager, Human Resources, the selecting official, the District
Complement Coordinator and the Human Resources Generalist all stated that there was no rule
or regulation that obligated management to inform Complainant about the job posting and that
each employee is responsible for monitoring the posting system and applying for positions; that
all applicants had to apply using the online eCareer system; and that Complainant had to apply
for the position to be considered for selection.

With respect to Complainant’s arguments to establish pretext, the Agency noted that
Complainant argued that she was more qualified for the position based on her credentials.
Complainant maintained that the Manager and the District Complement Coordinator knew she
would be interested in applying for the position if the job was posted. The Agency reiterated
that there was no rule or regulation requiring management to inform Complainant of the job
posting. The Agency stated that the selectee denied he had any contact with the Manager about
the posting. According to the selectee, he learned of the posting while checking the eCareer
system. The Agency determined that Complainant failed to show that the Agency’s
explanation was a pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant states that the Manager knew of her prior interest in the position and
outstanding qualifications but still did not notify her that the position was available.
Complainant states that the Agency deemed the Manager’s testimony more credible than her
testimony without explanation. According to Complainant, she has established pretext because
of the preferential treatment given to the selectee when he was informed of the available
position.

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ANALYSIS AND FINDINGS

Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant 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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant established a prima facie case of discrimination
under each of the alleged bases. The Agency explained that Complainant was not selected for
the Clinical Supervisor position because she did not apply for the position. The Agency denied
that the Manager informed the selectee that the position was available. According to the
selecting official, the selectee was chosen based on his qualifications as he had significant
related experience, and during his interview he demonstrated his knowledge of the
requirements of the position and presented a plan for the operation of the EAP activity. We
find that the Agency has articulated legitimate, nondiscriminatory reasons for its selection
decision.

Complainant attempts to establish pretext by claiming that her qualifications were superior to
those of the selectee and that she was discriminatorily denied the information that the Clinical
Supervisor position had been posted. The record reveals that there was no rule or regulation
that obligated management to inform Complainant about the job posting and that each
employee is responsible for monitoring the posting system and applying for positions; that all
applicants had to apply using the online eCareer system; and that Complainant had to apply for
the position to be considered for selection. Complainant did not apply for the position. The
selectee stated in his affidavit that he learned of the Clinical Supervisor position while
reviewing the eCareer system. In light of the fact that Complainant did not apply for the
position, it was appropriate that she was not considered for the position. We find that
Complainant has not established that the Agency’s explanation for its actions were a pretext for
prohibited discrimination.

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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 determination that Complainant did
not establish that she was subjected to discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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

November 17, 2016
Date