Tammi C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

2019000464 (E.E.O.C. Aug. 8, 2019)

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

Tammi C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 2019000464

Agency No. 4F-956-0033-15

Hearing No. 550-2016-00006X

DECISION

On August 29, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s August 1, 2018 final decision 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.

BACKGROUND

During the period at issue, Complainant worked as a Retail Specialist, Level 16, at the Agency’s
Sacramento District Office in Sacramento, California.

On April 24, 2015, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race/national origin (Russian) and in reprisal for
prior EEO activity when:

1. on December 16, 2014, she was notified that she was not selected for the position of
Staffing Specialist, EAS-19; and

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 December 16, 2014, she was notified that she was not selected for the position of
Field Recruiter, EAS-19.

After an investigation of the complaint, Complainant was provided a copy of the investigative
file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the
Agency filed a Motion for a Decision Without a Hearing. On July 16, 2018, the AJ issued a
decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

During the relevant period Complainant, a Level 16 Retail Specialist in the Agency’s
Sacramento District Office, applied for two EAS-19 positions, a Staffing Specialist position and
a Field Recruiter position. Prior to apply for the two positions, Complainant engaged in prior
protected activity and had participated in an Office of Inspector General (OIC)’s investigation
regarding nepotism. The AJ noted that there was no indication in the investigative report
regarding nepotism the OIG investigation implicated discrimination.

The Human Resources (HR) Manager was the only selecting official for both the Staffing
Specialist and Field Recruiter positions because in both cases there were fewer than 11
candidates. The HR Manager interviewed the candidates before making his selections.

Regarding claim 1, Complainant asserted that on December 16, 2014, she was notified that she
was not selected for the position of Staffing Specialist, EAS-19.

The HR Manager (unknown prior protected activity) stated that the Staffing Specialist position
was a newly created position that serves as a HR liaison “to Operations during the transition in
preparation of organizational and workforce changes. Operational knowledge and staffing
needs to include bid management, workload analysis and complement management are important
criterion of this position.”

The HR Manager stated that following the interviews, he chose the selectee for the subject
position because she was deemed the best qualified. Specifically, the HR Manager stated “the
person who was selected, I believed was better suited for the position as she demonstrated a
better understanding of staffing based upon workload and operational needs.”

The HR Manager stated that he did not select Complainant for the subject position because
during the interviews “I believed there were others that were interviewed that were better suited
for the position based upon their answers. Their answers of behavioral examples relative to the
position requirements demonstrated a better understanding of the position, how it interrogates
complement, hiring, and preparing for organizational workforce changes. As an example, during
the interview the Complainant failed to demonstrate an understanding of the meaning of
contractual terms such as Revert, Abolish or Residual.”

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The District Manager (unknown prior protected activity) stated that he was the approving official
for the Staffing Specialist position because the selectee had more experience and qualifications
that the other candidates. Furthermore, the District Manager stated at that time, he was not
aware of Complainant’s prior protected activity.

Regarding claim 2, Complainant alleged that on December 16, 2014, she was notified that she
was not selected for the position of Field Recruiter, EAS-19.

The HR Manager explained that the Field Recruiter position was a newly created position that
serves to attract and retain qualified candidates for job opportunities and “as the main point of
contact between HRSSC and Operations regarding recruitment and hiring activities.”

Following the interviews, the HR Manager chose the selectee because she demonstrated a better
understanding of hiring and recruitment “based upon workload and operational needs and Postal
Policies governing employment and placement.”

The HR Manager stated that he did not select Complainant for the subject position because
during her interview, she “failed to demonstrate an understanding of the Postal Handbook that
outlines employment and placement policies (e.g. Handbook EL 312 Employment and
Placement).”

Moreover, the HR Manager stated that during the relevant period, he was not aware that
Complainant had engaged in prior protected activity. He had forgotten that Complainant had
been issued Letters of Warning by the Acting Manager until Complainant reminded him of it
when he told her that she had not been selected for the subject positions. Moreover, the HR
Manager stated that Complainant’s race and prior protected activity were not factors in his
decision to select the two selectees.

The District Manager stated that he concurred with the HR Manager’s decision to select the
selectee for the Field Recruiter position based on her qualifications.

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established. The Agency issued its final action adopting the AJ’s decision.

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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
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factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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 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.

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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the non-selections.
Complainant did not prove, by a preponderance of the evidence, that these proffered reasons
were a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

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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.
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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

August 8, 2019
Date