0120182326
10-03-2018
Jene M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jene M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120182326
Agency No. 4J604016316
DECISION
On August 11, 2017, 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 August 1, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established that she was subjected to discrimination based on age and disability (Back/Neck) when, on dates to be specified since January 19, 2016 and continuing, her pay has been incorrect.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's St. Charles Post Office facility in St. Charles, Illinois. On November 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (back/neck) and age (53) when, on dates since January 19, 2016 and continuing, her pay has been incorrect.
The record shows that despite a request by the Investigator, Complainant failed to provide an affidavit in support of her complaint. (Report of Investigation [ROI], Aft. A, p. 20). Therefore, the following unsworn information is derived from the record. Complainant claimed that her supervisor S1 and the Postmaster (S2) intentionally discriminated against her because of her age and disability. Complainant maintained that since she returned to the Post Office, on limited duty, she had not been paid correctly. She indicated that as per the Employee Labor Relations Manual (ELM) 564, a Memorandum of Understanding (MOU) and other agreements with the Union, she was to be paid a salary instead of an hourly rate. (Report of Investigation [ROI], Formal Complaint).
Complainant indicated that she was working at the Call Center as a Rural Carrier, and that Rural Carriers are salaried positions. Complainant asserted that she was being paid an hourly rate while working at the Call Center. She stated that she agreed to the Call Center position with the understanding that she would be paid her regular salary. She indicated that since she had been working at the Call Center she had been ignored, yelled at, docked in pay and that she was lied to. Complainant stated that the situation developed because S1 did not know how to put her into the system to be paid. She stated she had to get salary advances to receive pay and then she was charged for them later. (ROI, Counselor's Report, pp. 4-5).
The Agency explained that the alleged incorrect payment made to Complainant was the result of a coding error; that the error was corrected; that Complainant has since been paid correctly; and that neither Complainant's physical disability nor her age was a determining factor in the incorrect payment.
S2 testified that she understood that Complainant's pay was coded incorrectly. She attested that an adjustment was made. S2 averred that Rural Operations entered the code for Complainant to be paid. She averred that the local office where Complainant was working would enter the hours she worked. The employee is to provide a copy of the pay stubs to the immediate supervisor if something is incorrect. She declared that the supervisor will investigate if that occurs. S2 attested that Complainant brought the issue to the attention of S1. S1 turned the matter over to the employee who worked in Postal Service Rural Operations. (ROI, Aff. C, p. 3).
S1 attested that she believed Complainant was advised that she had been coded incorrectly in the pay system. She testified that she believed Complainant was told it would be corrected. (ROI, Aff. C, pp. 3- 4). Both S1 and S2 testified that Complainant's age and medical condition were not determining factors when she was paid incorrectly. (ROI, Aft. B, pp. 2-4).
The record evidence includes a copy of Complainant's Offer of Modified Duty Assignment (Limited Duty), PS Form 2499. Her assignment was to a Modified Rural Carrier Level 00/12 position. The duties of the offer included Customer Service Tele-sales. The document referenced the date of her injury to be March 28, 2011. The offer date was January 11, 2016. Complainant signed the Offer on January 19, 2016. (ROI, Exh. 3).
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. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, appears to indicate that the Injury Compensation office corrected the problem with her pay. According to Complainant, she was "never supposed to be in a LWOP status while working limited duty. This is why I wasn't being paid correctly."
The Agency provided no additional statements on appeal.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A Complainant must initially 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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 Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of age and disability discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this case, Complainant alleged she was paid incorrectly upon her return to modified duties at the Agency. The Agency explained that the incorrect payments made to Complainant were the result of an error in coding; that the error was corrected; that Complainant is now being paid correctly; and that neither Complainant's age nor her disability were determining factors in the coding error or incorrect payments. Complainant provided no persuasive evidence that her age or disability played any role in this matter. On the contrary, on appeal, she indicated that her erroneously being placed in a LWOP status while working limited duty was the reason she received the incorrect amount of pay.
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 final decision because the preponderance of the evidence in the record does not establish that discrimination occurred.
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 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
_10/3/18_________________
Date
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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