EEOC Appeal 2020001687

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adolfo O., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020001687
Hearing No. 541-2016-00195X
Agency No. 4E-000-0002-16
DECISION
On January 8, 2020, Complainant 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
December 5, 2019 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Customer Services Program Analyst, EAS-
23 at the Agency’s Western Area Office in Denver, Colorado.
On June 7, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of race (Hispanic), sex (male), disability and age (60) when,
on or around March 4, 2016, he learned that he was not selected for the position of Manager, Small
Business Development and Mail Acceptance pursuant to Job Posting 95042900.
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 an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). 	Complainant timely requested a hearing. 	Over Complainant's
objections, the AJ assigned to the case granted the Agency’s November 16, 2018, motion for a
decision without a hearing and issued a decision without a hearing on December 2, 2019. 	The
Agency subsequently issued a final order adopting the AJ’s finding no discrimination. This appeal
followed.
ANALYSIS AND FINDINGS
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.
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 failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that indicates
such a dispute.
We have long recognized that the party opposing summary judgment must do more than merely
recite facts or rest on his pleadings to demonstrate that a genuine dispute of material fact exists.
James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence
of some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth
specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized
that not every factual dispute qualifies as a genuine issue that will prevent summary judgment.
Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant
v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Because Complainant’s
rebuttal of the Agency’s explanations for its actions are unsupported we find that he has not shown
the presence of a material issue of fact.

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A claim of disparate treatment 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 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, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. 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 Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation, EEOC Request No.
05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No.
05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
The evidence reflects that on January 5, 2016 Complainant applied for the subject position. The
Agency convened a review committee to review applications, interview eligible candidates, and
refer names to the selecting official who would choose a candidate to fill the position. 	Five
candidates, including Complainant, were selected to be interviewed. 	The Agency asserts that
although Complainant was well-qualified for the position, the selecting official determined that
the selectee was the most qualified candidate for the position due to her sales experience, which
the selecting official believed critical to success in the position. The selecting official who sat in
on the interviews, found that the selectee gave an excellent presentation and was the highest rated
of all candidates.
We agree with the AJ that Complainant failed to rebut the Agency's legitimate, nondiscriminatory
reasons for his nonelection. Complainant failed to show that his qualifications for the position were
plainly superior to the selectee's qualifications. See Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995). On appeal, Complainant merely reiterates his
arguments presented before the AJ. Based on the foregoing, we find that Complainant failed to
show that the Agency's action was motivated by discrimination as he alleged.

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CONCLUSION
Based on our thorough review of the record and the contentions on appeal, the Agency’s final
order, implementing the 	AJ’s decision without a hearing, finding no discrimination, is
AFFIRMED for the reasons discussed above.
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

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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
August 31, 2020
Date