Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 7, 20150120131147 (E.E.O.C. Apr. 7, 2015) Copy Citation 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 (Western Area), Agency. Appeal No. 0120131147 Agency No. 1E-982-0010-12 DECISION On January 15, 2013, Complainant filed an appeal from the Agency’s December 7, 2012 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., 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Mail Handler Equipment Operator at the Network Distribution Center (NDC) in Seattle, Washington. On May 7, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), disability, age (51), and in reprisal for prior protected EEO activity when on or about February 9, 2012, and continuing, she has not been paid Continuation of Pay (COP) and/or was paid at the incorrect level/step.1 1 Complainant also claimed that false statements were provided to the Office of Workers’ Compensation Programs (OWCP) in regard to her February 8, 2012 on the job injury. However, this claim was dismissed for failing to state a claim in accordance with 29 C.F.R. § 1614.107(a). Complainant does not raise this dismissal on appeal, and we decline to disturb it. 0120131147 2 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). 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND Complainant claims she was injured while working on February 8, 2012. She asserts that she did not receive the correct amount of COP. The record shows that the Human Resource Management Specialist at the NDC (HR1) was assigned to Complainant’s Office of Workers’ Compensation Program (OWCP) claim. HR1 explained that Agency procedure requires the immediate supervisor to enter code 071 for COP payment in the reporting system and the Human Resources Office either authorizes or denies the payment. The record shows that pursuant to federal COP regulations, the first three days of Complainant’s total disability which started on February 9, 2012, should have been charged to her own sick or annual leave, which explains why Complainant was not, initially paid COP for those days.2 HR1 further explains that if the disability causes absence from work that exceeds 14 days, the initial sick leave charged could then be adjusted to COP. HR1 also affirmed that the pay journal showed that adjustments were made for the change of Complainant’s sick leave to Code 071, COP. The Manager Distribution Operations (M1) also asserts that on May 16, 2012, pay adjustments were made for February 9-11, 2012, for the first three days of the 45-day COP period. In addition, adjustments were made to change Leave Without Pay to COP. Accordingly, Complainant received 32 days of COP pay and 1 day Holiday pay. M1 notes that the other 12 days of the 45-day COP period were Complainant’s scheduled days off. In addition, the record shows that management adjusted Complainant’s pay to reflect 24 hours of code 072 pay, which is Sunday Premium Pay. However, M1 notes that on Sunday, February 5, 2012, Complainant was on Annual Leave and not entitled to code 072 Sunday Premium Pay. ANALYSIS AND FINDINGS We find insufficient evidence of discrimination or retaliation in this matter. Aside from Complainant’s unsupported assertions, the record is devoid of evidence that she was paid improperly. Moreover, the record is devoid of evidence to establish that she was treated any differently than her counterparts or that any responsible management official was motivated by discriminatory or retaliatory animus. Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final decision. 2 The record shows that this procedure was applied to Complainant’s co-workers. 0120131147 3 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 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 0120131147 4 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 April 7, 2015 Copy with citationCopy as parenthetical citation