01995854
01-10-2002
Deborah L. Pascua, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Midwest Area Agency.
Deborah L. Pascua v. United States Postal Service
01995854
01-10-02
.
Deborah L. Pascua,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Midwest Area
Agency.
Appeal No. 01995854
Agency No. HI-0159-96
Hearing No. 210-98-6068X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 of 1963 (EPA), as amended, 29 U.S.C. � 206(d)
et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the bases of sex
(female) and national origin (Filipino) when:
(1) a coworker (CW 1: male, national origin unknown) was offered a
starting salary that was substantially higher than complainant's;
she was denied the opportunity to negotiate her starting salary with
the agency; and
she was instructed she could not obtain secondary employment without
prior approval by management.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Postal Inspector at the agency's
Chicago, Illinois, facility, filed a formal EEO complaint with the agency
on May 3, 1996 alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
The AJ found that complainant failed to establish a prima facie case of
National Origin discrimination under Title VII. Specifically, the AJ
found that complainant failed to demonstrate that agency officials were
aware of her national origin. The AJ further found that complainant
established a prima facie case of sex discrimination under Title VII,
regarding her claims concerning the discrepancy between her starting
salary and the starting salary of CW 1, and the agency's denial of the
opportunity to negotiate her starting salary. The AJ found, however,
that the agency articulated legitimate, nondiscriminatory reasons for
its actions.
The AJ determined that the agency had a three-tiered hierarchy of hiring
preferences for Postal Inspectors. The first tier comprised current or
former Federal law enforcement officers, and the second tier, current
agency employees. The third tier, which comprised all other applicants,
included complainant and CW 1, both of whom were city or State law
enforcement officers. Under the agency's system, those in the third
tier would be offered a salary matching their current primary salary,
with no consideration of income from secondary employment, but with a
minimum pay level above a certain level. The AJ further found that RMO 1
(male) reconsidered the starting salary of CW 1 a few months after CW
1's start date because CW 1 wrote to him directly, providing him with
�evidence of a multi-year pattern of significant overtime as a detective�
with a city police department.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant did not prove by a preponderance of the evidence that agency
officials provided similarly situated male employees, including CW 1,
with information on how to appeal their starting salary, while withholding
such information from complainant. The AJ further found that complainant
did not prove by a preponderance of the evidence that the agency engaged
in a pattern or practice of favoring males over females when calculating
starting salaries for Postal Inspectors. Finally, the AJ found that
complainant's argument that she is better qualified than CW 1 ignored
the agency's assertion that the qualifications of complainant and CW 1
were not considered when calculating their starting salaries.
The AJ found that complainant did establish a prima facie case under the
EPA. The AJ further found that the agency did prove by a preponderance
of the evidence that the salary difference between complainant and
CW 1 fell into a permissible statutory exception because the salary
difference was due to a reason other than sex. The AJ found that the
agency's explanation that the salary difference was due to the large
amount of overtime earned by CW 1 on a regular basis over the previous
seven years, satisfied the statutory exception.
Finally, the AJ dismissed complainant's contention that she was
discriminated against when she was instructed she could not obtain
secondary employment without prior management approval, on the grounds
that complainant had not contacted an EEO Counselor in a timely manner.
Specifically, the AJ found that complainant was aware of requirement for
prior management approval of secondary employment by July 22, 1994 but she
did not contact a Counselor until April 9, 1996. The agency's final order
implemented the AJ's decision. From this decision, complainant appeals.
On appeal, complainant contends that the AJ made numerous errors
in his decision. Regarding complainant's EPA claim, complainant
argues that the AJ's decision that the agency's consideration of CW
1's overtime was a factor other than sex was in error because the AJ
rested his decision on complainant's supposed failure in demonstrating
she had a similar pattern of overtime or compensatory time. Complainant
argues that she did in fact testify that she had had multiple years of
overtime or compensatory time that she had asked the agency to consider.
She states that, while she did testify about earning overtime, she did
not testify to the specific amounts of her average overtime, or call any
witnesses about it, because of instructions from the AJ. She says that
the AJ bifurcated the hearing into liability and damages phases and had
directed complainant not to call her witnesses until the damages phase
of the hearing, which ultimately was never held.
In addition, complainant argues that the AJ's credibility findings were
manifestly against the weight of the evidence. Complainant notes that,
in a footnote addressing whether or not complainant had proven by a
preponderance of the evidence that agency officials had provided CW 1
with information on how to appeal his starting salary while withholding
such information from complainant, the AJ stated that complainant's
overall testimony lacked credibility. Specifically, the AJ found that
complainant's testimony that RMO 2 (female) was the management official
who had told CW 1 that he could negotiate his starting salary, lacked
credibility, in part because of complainant's testimony that RMO 2 had
sent an e-mail to female, but not male, Postal Inspectors regarding
unauthorized secondary employment. The AJ noted that a printout of the
email in question showed that it had also been sent to a male (RMO 3).
Complainant contends that the AJ erroneously concluded that, because
RMO 3 is a male, the presence of his name on the e-mail contradicted
complainant's testimony. Instead, complainant contends, RMO 3 was
the Acting Inspector in Charge, and was the person issuing the order.
Complainant argues that the e-mail was not intended as a warning to
him, but was in fact sent by his subordinate, RMO 2, and he was only
included as a recipient in order to provide him with a �courtesy copy�.
His name on the e-mail therefore does not contradict her testimony
that only female Postal Inspectors were warned of the need to obtain
prior management approval. Furthermore, complainant argues, the AJ
erroneously used the supposedly non-credible testimony, which related to
alleged discriminatory treatment that occurred after she had been hired,
to support his finding that complainant had not proven discrimination
during the hiring process, an unrelated issue.
Next, complainant argues that the agency violated the EPA because,
by its own admission, it exercised discretion generously in favor of a
male while not considering discretion with regard to a woman. Finally,
complainant argues that the AJ erred in dismissing, on the grounds of
untimely Counselor contact, her allegation concerning an e-mail that
was sent only to female Postal Inspectors notifying them of the need
to obtain management approval prior to obtaining secondary employment.
Complainant contends that her Counselor contact was timely because the
incident consisted of a continuing violation that persisted up to and
beyond the date she sought EEO counseling. She further argues that,
while she received the e-mail in question on July 22, 1994, she was not
aware that the requirement did not apply to male employees until March 4,
1996<1> She therefore contends that, even if this was not a continuing
violation, her Counselor contact, on April 9, 1996, was timely.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
In order to establish a prima facie case, a complainant may show that
she is a member of a protected class, that she was subjected to adverse
treatment, and that she was treated differently than otherwise similarly
situated employees outside of the protected class. See Potter v. Goodwill
Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). In the present
case, the AJ found that complainant did not establish a prima facie
case of national origin discrimination, and complainant has offered no
argument to rebut this. We therefore discern no basis to disturb the
AJ's decision.
Regarding her claims of sex discrimination when CW 1 was offered a
starting salary that was substantially higher than complainant's, and
she was denied the opportunity to negotiate her starting salary with
the agency, we agree with the AJ that complainant established a prima
facie case. We further find that the agency articulated a legitimate,
nondiscriminatory reason for its action. RMO 1 testified that he
reconsidered the starting salary of CW 1 a few months after CW 1's start
date because CW 1 wrote to him directly, providing him with �evidence
of a multi-year pattern of significant overtime as a detective� with a
city police department. The burden therefore shifts to complainant to
prove, by a preponderance of the evidence, that such legitimate reason
is a pretext for discrimination. See Burdine, 450 U.S. at 256.
In an effort to demonstrate pretext, complainant argues that she too
worked significant amounts of overtime as a city police detective for a
number of years prior to being hired by the agency. She makes no claim,
however, that she brought this information to the attention of RMO 1.
Instead, she says, she did not know that RMO 1 was the person to whom
she should have made her request, and she contends that the agency
deliberately withheld this information from her, while providing it to
CW 1. In support of her argument, she maintains that RMO 2 told her
that nothing could be done about her starting salary, but that when CW
1 complained about his starting salary, RMO 2 told him that he should
contact RMO 1. She testified that she obtained this information from
CW 1.
We note that neither party called either RMO 2 or CW 1 to testify at
the hearing. In affidavits submitted during the agency investigation,
both RMO 2 and CW 1 denied that RMO 2 had told CW 1 to contact RMO 1
in order to request a higher salary. CW 1 stated that he did so on his
own initiative. In view of the conflicting statements by complainant on
the one hand, and CW 1 and RMO2 on the other, we find that complainant has
failed to establish, by a preponderance of the evidence, that the agency's
legitimate, nondiscriminatory reason is pretext for discrimination.
We note initially that complainant has stated a claim under the
Equal Pay Act. The U.S. 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, 195 (1974). To establish a
violation of the EPA, a complainant must show that she or he received less
pay than an individual of the opposite gender for equal work, requiring
equal skill, effort and responsibility, under similar working conditions
within the same establishment. Id. at 195; Sheppard v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000);
see also 29 C.F.R. �1620.14(a).
Once the complainant has met her burden of establishing a prima facie
case, an employer may avoid liability only if it can prove that
the pay difference is justified under one of the four affirmative
defenses set forth in the EPA, namely: (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 an incentive or
piecework system); or (4) a differential based on any other factor
other than sex. 29 U.S.C.�206(d)(1); Corning Glass Works, 417 U.S. at
196-97: Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982).
Job classification systems qualify as a "factor other than sex" only if
the systems accurately reflect job duties and/or employee qualifications.
The requirement of "equal work" does not mean that the jobs must be
identical, but only that they must be "substantially equal." Id. (citing
Corning Glass Works, 417 U.S. at 203, n. 24; Homer v. Mary Institute,
613 F.2d 706, 714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc.,
567 F.2d 429, 449 (D.C. Cir. 1976)).
We agree with the AJ that complainant established a prima facie case
under the EPA. We further agree that the agency successfully proved
by a preponderance of the evidence that the salary difference between
complainant and CW 1 fell into a permissible statutory exception because
the salary difference was due to a reason other than sex, namely, that CW
1, by presenting his request to RMO 1, essentially negotiated a higher
salary than complainant. We note that negotiating or bargaining for a
higher salary is a permissible defense for an employer under the EPA, as
long as the employer treats both sexes the same way. See EEOC Compliance
Manual, Compensation Discrimination, Section 10, p.44, example 42.
We find that complainant has not shown that the agency treated women
differently than men when it came to bargaining for a higher salary.
Complainant maintains that she too attempted to negotiate for a higher
salary, but that she did not know whom to approach. She has presented
no evidence, however, other than her bare attestations, to support her
argument that, while CW 1 was told to contact RMO 1, complainant was
intentionally kept in the dark. As the agency has denied that complainant
was intentionally misled, or that the salary difference was due to sex,
complainant has failed to prove her case.
Regarding complainant's allegation that only female Postal Inspectors
were instructed they could not obtain secondary employment without
prior approval by management, we find that the AJ correctly dismissed
complainant's claim. However, while the AJ found the claim to be
untimely, we find that complainant has failed to state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We note that in both her Formal Complaint and her Investigation Affidavit,
complainant contends that only female Postal Inspectors were told
that they needed approval from management before engaging in outside
employment. The agency contends that the requirement applies to all
Postal Inspectors equally. Complainant, however, has not indicated that
she ever sought outside employment, nor has she identified any specific
outside job opportunities that management prevented her from engaging in.
She has therefore not shown she suffered a harm or loss with respect to
a term, condition, or privilege of employment. Id.
In conclusion, the Commission finds that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present
sufficient evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's sex or national origin, or
that the discrepancy in treatment was not due to a reason other than sex.
We discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0900)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction within two years or, if the violation is willful, three years
of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The
filing of the civil action will terminate the administrative processing
of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___01-10-02_______________
Date
1The agency contends that the policy applies to all Postal Inspectors
equally. Complainant has provided no evidence, other than her bare
attestations, to show that male Postal Inspectors were permitted to work
secondary jobs without prior management approval.