Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Jul 16, 2015

01-2013-3215-0500 (E.E.O.C. Jul. 16, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120133215

Agency No. 4G-390-0034-12

DECISION
Complainant filed an appeal from the Agency’s August 1, 2013, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at
an Agency facility in Vancleave, Mississippi.

On June 26, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female). The Agency determined Complainant’s formal
complaint alleged that:

On March 15, 2012, Complainant learned that, since August 2009, she was the only
employee required to complete an Assignment Order (PS Form 1723) for an Acting
Supervisor (204B) detail.

In a July 31, 2012 decision, the Agency dismissed Complainant’s complaint pursuant to 29
C.F.R. § 1614.107(a)(1), for failure to state a claim. Complainant appealed the Agency’s
decision to the Commission. In EEOC Appeal No. 0120123329 (January 25, 2013), the
Commission reversed the Agency’s dismissal. The Commission determined Complainant was
claiming that she was the victim of sex discrimination when as a result of her assignment as a
204-B, actions were taken in the processing of the detail that denied her days off and overtime
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pay unlike the males in similar 204B positions. The Commission found Complainant had
alleged an injury or harm to a term, condition, or privilege of employment for which there was
a remedy and remanded the complaint for further processing.

At the conclusion of the investigation on the remanded complaint, 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).
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). In its
final decision, the Agency concluded Complainant failed to establish that she was subjected to
discrimination as alleged.

On appeal, Complainant states that she was the only female Rural Carrier to be on a processed
Form 50 on day 31 of a detail. Complainant notes that Comparative 1 was listed by the
Agency as having had a Form 50 processed on him on three occasions. Complainant states
that on the first and second occasions, Comparative 1 worked several weeks on the 204B
assignment and then worked his route, which Complainant claims broke the 30-day cycle.
With regard to the third 204B assignment, Complainant notes she filed her complaint within 45
days of this incident. Complainant claims she did not receive overtime. Additionally,
Complainant states the “X-day” referred to by the Agency was an “R-3 day” which gave her
half the pay and happened before the 31st

day on her 204B assignment.

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. (November 9, 1999) (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”).
In the present case, Complainant claimed that she was the only Rural Carrier Acting
Supervisor who signed a PS Form 1723 and who also had a PS Form 50 issued when she
worked on higher level assignments. Complainant alleged this situation affected her pay.
Specifically, Complainant claimed that PS Form 50s were not created on three males who
served as Acting Supervisor, thus entitling them to “the benefits of earning overtime and X-
Days.” Complainant named three Rural Carriers who she stated were treated differently:
Comparative 1, Comparative 2, and Comparative 3.

The record reveals PS Form 50s were processed for Comparative 1 effective January 16, 2010
(detail to a Manager position), March 16, 2012 (detail to a higher level supervisor assignment),
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and February 23, 2013 (detail to a higher level supervisor assignment). Each of the three
Form 50s for Comparative 1 contained the notation that in accordance with EL-902 and its
Employee and Labor Relations Manual “Detail F50s are processed day one of the pay period at
least 30 days after detail begins.”

The Agency acknowledged the record did not contain PS Form 50s showing detail assignments
for Comparative 2 or Comparative 3. The Agency noted that the details of Comparative 2 and
Comparative 3 were never long enough (i.e., never more than 30 days) that a PS Form 50
should have been issued.

The Agency claimed that according to its National Agreement with the National Rural Letter
Carriers’ Association (EL-902), Article 25, Higher Level Assignments, a regular rural carrier
in a higher level assignment is paid based on the evaluation of the route to which she is
assigned for the first 30 days of the temporary higher level assignment. The Agency stated
that at the beginning of the next pay period, the individual’s salary is converted to that of a 40-
hour evaluated route, attained step and adjusted in accordance with the salary routes for
changes under the salary schedule to which the individual is assigned. The Agency claimed its
actions were consistent with its contractual requirements.

Although management acknowledged there may have been instances when Form 1723s were
not prepared when craft employees worked higher level positions for short durations, we find
there was no evidence that any employee worked a higher level assignment for more than 30
days without a PS Form 50 being processed. As previously mentioned, when Comparative 1
was detailed to higher level position for more than 30 days, PS Form 50s were processed on
three occasions. Moreover, even if Complainant was correct in her assertion that Comparative
1 worked some of the days on his route during the first detail and the second detail which she
claimed would have broken the 30-day cycle, this does not constitute evidence that the Agency
discriminated against Complainant because of her sex.

We note that in her affidavit, Complainant stated that sex was not a factor with regard to the
PS Form 1723, but was a factor with regard to the SF-50. Complainant claimed that she was
denied the same benefits as her male counterparts in that she did not receive X-Days and
overtime.

Person A stated that Complainant did earn X-Days and days off when she worked the higher
level assignment. Person A provided a copy of the Certificate Sign Off Reports and stated that
the “Ys” and “3s” contained on the report are indicative of the “X-days” Complainant earned
while she was on the higher level assignments. Person A stated that Complainant’s scheduled
days off during the time she was on detail on the Form 50 were Saturday and Sunday. Person
A noted the Employee Everything Report showed that Complainant was paid for eight hours on
the days she worked her off day. Although Complainant stated that one of the “X-days”
referred to by the Agency was an “R-3 day” which gave her half the pay, the record reveals
the day was coded as a “3.” According to the DACA Codes provided, a “3” indicated
Complainant was “Required to Work Relief Day” which gave her “50% of Daily Evaluation
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+ 1 future X-Day.” We note that Complainant does not dispute any of the other “X-days”
identified by Person A. Moreover, we note Complainant does not identify any specific days
she was denied overtime or did not receive an “X-day.” Upon review, we find Complainant
failed to prove by a preponderance of evidence that the Agency subjected her to discrimination
based on her sex.

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 16, 2015