Tommie O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

2019001693 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommie O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019001693 Hearing No. 410-2016-00208X Agency No. 4K300023515 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 31, 2018, final order 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 was employed as a City Carrier but was serving in a detail working as the Acting District Communications Coordinator at the Agency’s North Metro Processing and Distribution Center in Duluth, Georgia. On September 30, 2015, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African-American), national origin (African- American), color (Black), and age (born 1953) when, on June 1, 2015, he was notified that he 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. 2019001693 2 was ineligible to apply for the Communications Programs Specialist (“CPS”) position number 86243768. Complainant also claims that the Agency discriminated against him based on race (African- American), national origin (African-American), color (black), age (YOB: 1953), and in reprisal for prior protected EEO activity when: 1. on October 2, 2015, Complainant was notified that he was not selected for the CPS position number 88854350; and 2. on October 22, 2015, Complainant was notified that he was ineligible to apply for the CPS position located at the North Metro, Georgia facility. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a Motion for Findings and Decision Without a Hearing. On August 2, 2018, the AJ issued a decision, by summary judgment, in favor of the Agency. On August 31, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. 2019001693 3 However, 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. While Complainant has, in a very general sense, asserted that facts are in dispute, he has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. 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, non-discriminatory 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). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We note that the AJ did not elaborate on the specific reasons for her finding of no discrimination in the instant complaint. Our review of the record, however, indicates that the responsible Agency officials articulated legitimate, non-discriminatory reasons for not selecting Complainant for the three positions at issue during the investigation of the complaint. Regarding claim 1, the Corporate Communications Manager (“CCM”) (Caucasian, born 1968) testified that sometime after he assumed his position as the communication manager on September 19, 2015, an employee in his office informed him that Complainant had applied for CPS position number 86243768. The CCM explained that he was not involved in posting this position because it closed before he assumed his current position. However, the CCM acknowledged that he did see the posting. 2019001693 4 The CCM further explained that the posting was only open to EAS schedule employees and Complainant was not eligible to apply for the position because Complainant was a bargaining unit employee on the “Q” pay schedule. A copy of CPS position 86243768 vacancy announcement states, “SPECIAL NOTE: Current career Postal Service employees are ineligible to apply to this posting” (emphasis in original). Regarding claim 2, the CCM testified that he was the selecting official for the CPS position number 88854350. The CCM stated that he interviewed the applicants, including Complainant, but none of the applicants he interviewed had the media experience he felt necessary for the position. Consequently, the CCM explained that he closed the internal posting without a selection and posted the position externally since he decided that none of the applicants he interviewed were best suited for the position. Regarding claim 3, the CCM testified that he was the selecting official for CPS position at issue. The CCM explained that this CPS position was an external posting for a CPS position located at the Atlanta District Headquarters - Metro North facility located in Duluth, Georgia. The CCM further explained that the posting was for external applicants only and, therefore, Complainant was not eligible to apply because he was a postal employee. In sum, the CCM stated that the Agency had made four attempts to appoint an applicant to the CPS position for the Atlanta and Greater South Carolina districts. The CCM explained that the position was first posted for current EAS schedule employees, pursuant to Agency policy, but none of the internal applications were selected. The position was then posted for external candidates and a selection was made. However, the selectee (an African-American female) was not hired because the selectee and the Agency could not come agree on salary. Consequently, the CCM stated that the position was open to all internal candidates (including bargaining unit employees), but he did not select any of the applicants because none of them had the media experience necessary for the position. The CCM explained that the position was then posted for external candidates and the CCM choose a selectee (an African-American male) for the position. The CCM testified that he was unaware of Complainant’s prior EEO activity until he was contacted by the EEO investigator on November 20, 2015. We conclude that neither during the investigation nor on appeal has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, national origin, color, and age. CONCLUSION The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2019001693 5 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. 2019001693 6 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 January 17, 2020 Date