0120081327
10-23-2009
Glen D. Cournoyer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Glen D. Cournoyer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120081327
Agency No. 4F-000-0004-06
DECISION
On January 17, 2008, complainant filed an appeal from the agency's
December 13, 2007 final decision concerning his 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 Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted 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 an Operations Performance Analyst, EAS-23, at the Pacific
Area Office in San Diego, California. The record reveals that at the
beginning of Fiscal Year 2005, complainant was employed as an Operations
Specialist, EAS-25, at Postal Service Headquarters and earned $97,911.00
annually as of January 2006. Report of Investigation (ROI) at 10.
Complainant competitively applied for an Operations Program Analyst,
EAS-23, position at the Pacific Area Office in San Diego, California
and was selected for the position. Id. At the time of accepting the
position, complainant's salary exceeded the maximum pay for the EAS-23
position by $6,451.00. Id. Complainant was aware of this difference in
pay and accepted the lower-graded position in order to relocate. Id.
Complainant was informed that the agency was going to request that his
higher-level salary be retained under Employee Labor and Relations Manual
(ELM) 16 � 415.13.1 Id. However, on March 17, 2006, the Postmaster
(PM) informed complainant that the request was denied. Id.
On November 30, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (White), sex (male),
and age (48) when, on May 23, 2006, he became aware that other employees'
salaries exceeded the maximum for their grade level, whereas his request
to secure a saved salary for his lower-grade EAS position was denied.
In a final agency decision (FAD-1) dated December 18, 2006, the agency
dismissed complainant's complaint for untimely EEO Counselor contact.
Complainant appealed FAD1 to the Commission. In Cournoyer v. United
States Postal Service, EEOC Appeal No. 0120071318 (June 6, 20070, the
Commission reversed FAD-1 and remanded the complaint for an investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency then issued FAD-2 pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency's articulated reasons are
not worthy of credence. Further, complainant argues that he demonstrated
that others outside of his protected class were treated more favorably
than he.
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 EEOC Management
Directive 110, 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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
race, age, and sex discrimination, the record reveals that the agency
articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, the record contains the Employee Labor and Relations Manual
(ELM) 16 � 415.15, which provides that where an employee voluntarily
assumes a position with a lower salary, "the salary remains the same as
that in the higher grade position, provided it is not above the maximum
in the lower position's salary range. In no case may the salary be
set above the maximum for the new grade or above the employee's salary
immediately before the change." ROI at 22. Accordingly, complainant
could not receive salary protection.
Because we have found that the agency articulated a legitimate,
nondiscriminatory reason for its actions, we now turn to complainant's
burden to show that the agency's proffered reason was a pretext for
discrimination. Complainant argues that he was entitled to have his
salary retained at the higher EAS-25 level because ELM 16 � 415.13
provides that employees assigned to a lower grade position whose higher
grade salary does not fall within the salary range of the lower grade
would receive the higher grade salary. We find, however, that complainant
has not proved that this provision applies to his circumstances. We note
that the section provides that when an employee is assigned to a lower
grade, he retains the right to his higher pay. In contrast, ELM 16 �
415.15, provides that when an employee voluntarily assumes a position
with a lower salary, he is no longer entitled to pay outside the pay
scale provided for that position. Id. Complainant applied for and was
competitively selected for a lower-paying position. Complainant knew
that the position paid at a lower level and still accepted the position.
Therefore, we find that complainant has not demonstrated that the
provisions of ELM 16 � 415.13 apply, instead of � 415.15.
Complainant also argues that he demonstrated that individuals outside
of his protected class retained their salary under ELM 16 � 415.13.
The record reveals that, of the individuals identified by complainant,
complainant failed to show that those individuals applied for and elected
to take a position with a lower pay grade and retained a higher pay
outside of that grade. ROI at 26-27. Accordingly, complainant has
failed to show that the agency's explanation why her salary was not
saved is pretext to mask prohibited discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
finding that complainant failed to prove by a preponderance of the
evidence that he was discriminated against as he alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
October 23, 2009
Date
1 The EML 16 � 415.13 provides: "Saved salary provides that an employee
assigned to a lower grade position whose higher grade salary does not
fall within the salary range of the lower grade has this higher grade
salary continued (saved)." ROI at 22.
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0120081327
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081327