EEOC Appeal 2020000138

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kerry B.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020000138
Agency No. 1E-971-0005-19
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts an August 26,
2019 appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 23, 2019, 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., 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 a Mail Processing Clerk, P7-06, at the Agency’s
Processing and Distribution Center in Portland, Oregon.
On December 14, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), sex (male), color (Black),
age (56) and in reprisal for prior protected activity (numerous prior complaints) when, on
September 26, 2019, he was not selected for the position of Supervisor, Maintenance Operations
(SMO).
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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After its investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 	When
Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f),
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination
was proven.
The instant appeal followed.
ANALYSIS AND FINDINGS
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).
Here, Agency management articulated legitimate, non-discriminatory reasons for not selecting
Complainant for the SMO position.
The position at issue was posted in August 2018 and Complainant filed a timely eCareer
application. The Selecting Official (Caucasian/White male, age 56) stated that a three-member
panel reviewed the applications and referred three candidates (Asian female, age 39; Asian male,
age 51; male of unknown race, age 41) to him deemed best qualified for an interview. Complainant
was not among those referred for an interview. Following the interviews, the Selecting Official
chose the selectee (Asian female, age 39), stating that during the interview he determined she had
strong communication skills and innovative ideas for the position.

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The review panel was comprised of the Supervisor, Maintenance Operations (“Panelist 1”)
(African American/Black female, age 36), the Maintenance Engineering Specialist (“Panelist 2”)
(Asian/Brown male, age 51) and the Manager, Maintenance Operations (“Panel Chair”) (Hispanic
male, age 47). The panelists stated that the selection of the candidates to be interviewed was based
solely on their eCareer application’s section concerning their “Knowledge, Skills, and Abilities”
(KSAs) related to the position in question. The Panel Chair and both other panelists testified that
Complainant’s KSAs, as presented on his application, did not demonstrate that he was well
qualified for the position. The panelists stated that they used the same matrix to score the KSAs
for each candidate, using the nine written qualifications for the position that appeared on the job
posting.
A copy of the job posting in the record indicated candidates for the position were to address the
following qualifications in their KSAs:
1. 	Knowledge of policies, procedures, and practices related to preventive and
corrective maintenance.
2. 	Knowledge of regulations and standards related to custodial maintenance,
energy conservation, fire prevention, and safety.
3. 	Ability to read and interpret blueprints, schematics, and technical drawings
and diagrams.
4. 	Ability to establish and implement a preventive maintenance schedule.
5. 	Ability to coordinate maintenance and custodial activities with the activities
of other functional areas.
6. 	Ability to prepare status reports on work performed.
7. 	Ability to estimate and forecast maintenance costs.
8. 	Knowledge of plumbing, mechanics, electricity, and electronics as they apply
to the installation, maintenance, repair, and modification of buildings,
building systems, and mail processing and customer service equipment.
9. 	Ability to manage the work of electronic technicians, mechanics, and
custodians to accomplish maintenance goals which will include organizing,
coordinating, and monitoring the work; establishing effective work
relationships, and facilitating the flow of work-related information.
All three candidates referred for interviews received a higher overall score for the nine
qualifications on the matrix than Complainant by all three review panelists. Because Complainant
was not determined to be best qualified for the position, he was not referred for an interview.

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The Selecting Official also stated that when Complainant was not selected for the same position
in the past and his application contained similar KSAs, he spoke with Complainant, advised him
of the deficiencies in his KSAs, and offered to review the KSAs with Complainant in an effort to
improve them. However, Complainant rejected this offer and stated that his KSAs were fine as
written.
Complainant has not proven, by a preponderance of the evidence, that the responsible Agency
officials’ articulated reasons for his non-selection were pretext masking discriminatory animus.
Complainant argued that he should have been interviewed for the position because he has been a
certified supervisor since 2007, has detailed in this position, and had 9 years with the Air Force
maintaining equipment. 	However, he provided no evidence that he responded fully to all nine
qualifications for the position in the KSAs section of his application and provided no explanation
for not taking the Selecting Official’s past offer to review and improve his KSAs. 	Moreover,
Complainant has not shown that any alleged disparities in qualifications between himself and the
three candidates interviewed were “of such weight and significance that no reasonable person, in
the exercise of impartial judgment, could have chosen [those interviewed] 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).
On appeal, Complainant further states that he and another Agency employee (E1), both African-
American males with prior protected EEO activity, have been routinely denied promotions and
alleges that the Portland office has shut African-American employees out of promotions, in favor
of white and Latino employees. However, beyond these bare assertions, Complainant has provided
no evidence that the selection in question was motivated by discriminatory or retaliatory factors.
In his brief on appeal, Complainant primarily blames the Portland Human Resources Manager for
the alleged discriminatory practices at the facility. However, the Selecting Official and all three
panel members deny any involvement in the selection at issue by the Human Resource Manager
and there is no other evidence to the contrary.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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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
September 14, 2020
Date