Belia B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Apr 26, 2018

0120160469 (E.E.O.C. Apr. 26, 2018)

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

Belia B.,1
Complainant,

v.

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

Appeal No. 0120160469

Hearing No. 532-2012-00040X

Agency No. 1C-441-0040-11

DECISION

On November 7, 2015, 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
October 21, 2015, notice of final action concerning her 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. and the Equal Pay Act (EPA) of 1963, as
amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final action finding no discrimination.

BACKGROUND

On March 31, 2008, the Agency hired the Comparative (male) as a Casual Tractor Trailer Operator.
Pursuant to the posting for that position, the hourly rate set by Agency Headquarters was $17.00
per hour.

Agency Headquarters issued a directive dated February 13, 2009, implementing changes to its
Casual Employee Pay Policy “due to the current economic and business climate.” The directive
stated that effective February 14, 2009, any new Casual appointments were to be paid at a rate that

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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was at least one dollar less than the previously established rate of pay for each position within a
facility. Moreover, such new Casual employees were to be hired at a minimum hourly rate of
$6.55 to a maximum of $12.00 per hour. Any hourly rate above $12.00 required approval of
Headquarters Compensation. Then existing causal appointments were permitted to continue
employment at their then current rate of pay until the expiration of their appointment period.
Thereafter, then current casual employees were to have their hourly rate reduced by one dollar per
hour.

The Comparative’s casual appointment expired and, after a break in service, he was reappointed
on April 6, 2009. Pursuant to the February 2009 directive, when he was reappointed his rate was
reduced from $17.00 per hour to $16.00 per hour. The Comparative’s casual appointment lasted
approximately a year and, after appropriate breaks in service, he was reappointed yearly thereafter
at the $16.00 hourly rate.

Approximately one year after the Comparative’s hiring, the Agency posted a second Casual
Tractor Trailer Operation position for the facility from March 24, 2009, through March 29, 2009.
The posting advertised that the position would pay the rate of $13.00 per hour. Complainant
applied for the position and was selected effective June 20, 2009, with the salary of $13.00 per
hour.

In August 2011, both Complainant and the Comparative were converted from Casual employees
to Postal Support Employees (PSEs). Complainant’s hourly rate increased from $13.00 per hour
to $15.85 per hour. The Comparative’s hourly rate was reduced from $16.00 per hour to $15.85
per hour.

On January 3, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when:

On September 1, 2011, she discovered that a male employed in the same position received
a higher hourly wage.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. When
Complainant did not object, the AJ assigned to the case granted the Agency’s October 29, 2013,
motion for a decision without a hearing and issued a decision without a hearing on September 30,
2015, finding no discrimination.

The Agency subsequently issued a notice of final action on October 21, 2015. The Agency’s final
action fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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On appeal, Complainant states the Agency admits that she was paid a lower hourly rate than an
individual of the opposite sex for equal work, requiring equal skill, effort and responsibility, under
similar working conditions within the same establishment.

In response to Complainant’s appeal, the Agency states the Comparative was hired in a different
year and pursuant to a different posting than Complainant. The Agency states as the postings set
the rate of pay before anyone of either sex applied for the positions, and the employees were paid
according to the postings, there is no evidence of discrimination. The Agency notes it posted and
hired for the Casual position to which Complainant was hired at a time when it had been hit with
financial difficulties and had changed the rate of pay for new hires due to “the economic and
business climate.” The Agency notes the decision was made outside of the district or the facility
and without regard to the sex of the yet unknown applicants. The Agency contends there is no
indication of discrimination based on sex.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

First, we address Complainant’s contention that the Agency violated the EPA. The United States
Supreme Court articulated the requirements for establishing a prima facie case of discrimination
under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima
facie case of a violation under the EPA, a complainant must show that she or he received less pay
than an individual of the opposite sex for equal work, requiring equal skill, effort, and
responsibility, under similar working conditions within the same establishment. Sheppard v.
EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied,
EEOC Request No. 05A10076 (August 12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that the
difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a
seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality
of production of work (also referred to as an incentive or piecework system); or, (4) a differential
based on any factor other than sex. Id.

The EPA permits a compensation differential based on a factor other than sex. In order to establish
this defense, an Agency must establish that a gender-neutral factor, applied, consistently, in fact
explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation
Discrimination, No. 915.003, at 10-IV (December 5, 2000). The Agency must also show that the
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factor is related to job requirements or otherwise is beneficial to the Agency’s business and used
reasonably in light of the Agency's stated business purpose as well as its other practices. Id.;
Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0720040139, req. for recons. den.,
0520070616 (July 25, 2007).

We find the Agency met this affirmative defense by showing that the pay disparity between
Complainant and the Comparative was based on a “factor other than sex” - namely, that her
Comparative was hired at a different time and under a different posting than Complainant. The
record reveals the postings set the initial rate of pay before anyone of either sex applied for the
positions, and the employees were paid according to the postings. The record further reveals the
Comparative’s initial salary decreased upon his reappointment in April 2009, pursuant to the
“economic and business climate” at that time. The Agency notes it posted and hired for the Casual
position to which Complainant was hired at a time when it had been hit with financial difficulties
and had changed the rate of pay for new hires due to the same “economic and business climate”
rationale. This gender-neutral explanation has not been rebutted by Complainant and suffices to
convince us that the Agency did not violate the EPA on these facts.

Next, we address Complainant’s claims that she was subjected to disparate treatment based on her
sex. Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Comparative was hired at an earlier period of time when the posted wage for the position was
higher. Complainant was not hired under a posting advertising the higher wage. In the intervening
time between the Comparative’s hire and Complainant’s hire to the same position, the Agency
lowered the wage for the position due to the “economic and business climate.” Complainant has
failed to show that the Agency’s actions were a pretext for discrimination. Moreover, we note
there are no similarly situated employees who were treated differently that Complainant in the
same situation.

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CONCLUSION

Accordingly, the Agency’s final action finding no discrimination is AFFIRMED.

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
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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

April 26, 2018
Date