Alfonzo M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 2, 2019

2019000374 (E.E.O.C. Aug. 2, 2019)

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

Alfonzo M.,1
Complainant,

v.

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

Appeal No. 2019000374

Hearing No. 471-2016-00089X

Agency No. 4J-481-0024-16

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 July 12, 2018
final order concerning his 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 PSE Tractor Trailer Operator, GS 8 at the
Agency’s Vehicle Maintenance Facility located in the Detroit Processing and Distribution Center
in Detroit, Michigan.

On March 7, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), sex (male), and color
(black) when:
on or about October 17, 2015 to the present, Complainant was denied a corrected wage
rate of $21.12 per hour.

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.
2019000374

2

The record indicates that Complainant’s formal complaint included one additional claim.
However, the Agency dismissed this claim on procedural grounds.2 After an investigation of the
accepted claims, 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. On May 25, 2018, the AJ
issued a Notice of Proposed Summary Judgment (“Notice”). The Agency and Complainant
submitted responses to the AJ’s Notice. On June 29, 2018, the AJ issued a decision by summary
judgment in favor of the Agency.

On July 12, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed. On appeal, Complainant argues that his payments should have
increased to $21.12 effective November 15, 2014. Complainant further argues that his pay rate
decreased from $20.72 to $20.40 in 2014. Complainant states that he did not receive equal pay
from June 2014 through October 2015. However, Complainant does not appear to dispute the
merits of the AJ’s decision.

ANALYSIS AND FINDINGS

We determine whether the AJ appropriately issued the decision without a hearing. 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.
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.

2 Complainant claimed that since an unspecified date in June 2014 to October 16, 2015, his rate
of pay is incorrect. The Agency dismissed this claim, pursuant to 29 C.F.R. § 1614.105(a)(1),
for untimely EEO Counselor contact. On appeal, Complainant does not dispute the Agency’s
dismissal of this claim and we will not further address it herein.
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An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute.

Here, Complainant does not assert, on appeal, any facts that are in dispute, nor does Complainant
address the merits of the AJ’s decision on appeal. Ultimately, the AJ correctly determined that
there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the
AJ’s issuance of a decision without a hearing was appropriate.

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).

The AJ properly determined that the Agency articulated legitimate non-discriminatory reasons
for its actions. The Human Resources specialist (“HR specialist”) testified that Complainant was
reappointed to his position on February 10, 2014,3 and had an initial pay rate of $20.72.
However, by June 14, 2014, Complainant’s pay rate was reduced to $20.40.

3 Complainant’s SF-50s indicate that he was reappointed to his position on February 10, 2013
with an initial pay rate of $20.32 and Complainant received a contractual increase of $0.40,
effective November 16, 2013, resulting in a pay rate of $20.72. Complainant was subsequently,
reappointed again on February 10, 2014 at a pay rate of $20.72.
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The HR specialist explained that Headquarters sent and email to HR Shared Servicing Center
requesting the change in Complainant’s pay rate. The HR specialist further explained that her
team was instructed to “make correction to 12 other PSE TTOs that were identified from
Headquarters that were paid at an amount in error that was higher than the authorized exception
rate.” The HR specialist further testified that as of October 17, 2015, Complainant had a pay rate
of $20.80.

The record includes a June 18, 2014 email from the Program Manager, located at the Agency’s
Compensation Headquarters, to the HR Shared Servicing Center stating that “the Detroit PFC is
authorized a PSE TTO exception rate of $20.00/hour.” The email further states that the

[Detroit] district is not authorized to increase the exception rate without following the
PSE exception rate process. PSE TTOs hired at the exception rate receive the contractual
increases if they are on rolls or in the service break on the effective date of the increase.
In addition to [Complainant], I’ve identified 12 other PSE TTOs that are paid at an
amount in error at a rate that is higher than the authorized exception rate.

A copy of Complainant’s SF-50 indicates that he received a contractual increase and had a pay
rate of $20.80, effective November 15, 2014. Complainant’s other SF-50s provided in the record
indicate that he did not receive another contractual increase, and his pay rate remained at $20.80
until his last temporary appointment with the Agency, effective February 10, 2016.

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, sex, and color.

CONCLUSION

The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

2019000374

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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 2, 2019
Date