Norris D.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 23, 2020

2019005356 (E.E.O.C. Sep. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Norris D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019005356 Hearing No. 440-2019-00075X Agency No. 1J-607-0048-18 DECISION 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 June 20, 2019, notice of final action 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 Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution Operations (SDO), EAS-17, at the Agency’s Chicago International Military Service Center located in Chicago, Illinois. Complainant was hired by the Agency on March 25, 1989, as a Distribution Clerk at the Chicago O’Hare Airport Mail Center (AMC) at a rate of $11.05 per hour. Complainant became a full- time employee on May 29, 1993, and he earned an annual salary of $27,800. 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. 2019005356 2 By November 27, 1993, Complainant was earning a base annual salary of $28,549 as a full-time Distribution Clerk at the O’Hare AMC. Complainant was promoted to an EAS-16 SDO at the O’Hare AMC on February 19, 1994, at a base annual salary of $33,344. Complainant became an EAS-17 SDO effective August 24, 2002 at a base annual salary of $44,705. Complainant stated at the time of his complaint, his base annual salary was $67,934. During the relevant time, the Agency used a Pay-for-Performance (PFP) system to determine EAS employees’ pay. Under the PFP system, each EAS employee was given a rating commensurate with the facility’s, not the individual’s performance, and which was the sole factor in determining whether an EAS employee was given a raise. The record reveals that between FY 2015 - FY 2018, the supervisors at Complainant’s facility all received the same PFP rating and corresponding raise percentage. The Manager of Classification and Compensation (Manager) explained that a variety of factors would result in SDOs receiving different salaries, including the promotional pay policy that was in effect for an employee when they were promoted/hired into the position, the annual salary range changes, and the relevant PFP history. The Manager noted that there were years when Complainant was a bargaining unit employee in which there were no PFP increases. The Manager also stated that an employee’s current salary when first promoted, the amount awarded at the time of the employee’s promotion per the discretion given in the policy at the time of the promotion, various merit performance programs in effect over the years, and any breaks in service would also explain discrepancies in salaries. On May 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when: On or around January 28, 2018, he became aware that he was paid less than coworkers. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing. The AJ issued a Notice of Proposed Summary Judgment and afforded the parties the opportunity to respond. Both parties responded and over Complainant's objections, the AJ issued a decision without a hearing on June 11, 2019. The AJ found that Complainant failed to show the record was not adequately developed given the evidence in the report of investigation, and the evidence the Agency submitted in response to the Notice of Proposed Summary Judgment. The AJ incorporated the Notice of Proposed Summary Judgment and the Agency’s Memorandum in Support of Notice of Proposed Summary Judgment and entered a decision in favor of the Agency. The Agency subsequently issued a notice of final action on June 20, 2019. The Agency’s final action fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2019005356 3 On appeal, Complainant claims his affidavit was not submitted to the AJ and he provides a copy of his affidavit. Complainant notes the record contained only recent evaluations from 2015 - 2018, but not earlier evaluations. Complainant also claims the record lacked information from Person A, Person B, and Person C, who he states were involved in determining his pay. Complainant reiterates that there are several supervisors who were 10 to 12 years his junior that were maxed out on the pay scale while he was not. Complainant notes that he has 30 years of service at the Agency and 10 years of prior military service giving him a combined 40 years. Complainant states he has been certified as a level 17 Supervisor for 25 years, was first certified as a supervisor in 1994, and from 1989 - 1994 he was used as a 204-B prior to becoming a certified supervisor. Complainant also notes he has never received discipline and at one point had over 2500 hours of accumulated sick leave and 200 hours of annual leave on the books. In response to Complainant’s appeal, the Agency notes there is no evidence that Complainant’s pay was based on race or sex. The Agency argues that while Complainant may believe the Agency’s system is unfair, he has failed to present a genuine fact as to his pay being based on his sex or race. The Agency points out that Complainant failed to allege, let alone prove, that similarly situated employees (i.e. employees that followed his career trajectory) outside of his protected class existed or that they were treated more favorably. Regarding Complainant’s contention regarding the lack of information from Person A, Person B, and Person C, the Agency noted the latest any of these managers was even employed at Complainant’s facility was 2013, and Complainant failed to demonstrate why statements from these managers would be calculated to lead to the discovery of admissible evidence for the present claim. The Agency argues Complainant’s request to engage in discovery going back more than six years amounts to a fishing expedition. The Agency states Complainant’s affidavit was in the report of investigation, and the AJ considered the entire report of investigation and the parties’ submissions when issuing her ruling. The Agency reiterates that Complainant’s pay as comparted to other supervisors in the facility are determined by that employee’s career path and how it developed, not due to their race or sex. Complainant subsequently submitted a brief on September 25, 2019, containing additional evidence to support his claim. Complainant supplies progress notes of medical visits from 2008 to 2017, evidence of his training record, copies of a comparative’s evaluation, articles on the PFP system, form 50s from 1994 and 2002, copies of denied leave requests and lateral assignments, and a purported current pay scale of junior supervisors who he stated receive higher pay than him. The majority of the documents were in existence at the time his complaint was before the AJ and some of the documents submitted date back to the early 2000s. Complainant states the evidence supports his claim of pay discrimination and harassment. The Agency objects to the submission of the additional evidence. The Agency notes Complainant offers no reason why this evidence was not, or could not have been, submitted to the AJ. 2019005356 4 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). At the outset, we note that despite Complainant’s contention to the contrary, his affidavit was contained in the report of investigation, which the AJ clearly considered in reaching her decision. Regarding Complainant’s claim about the lack of information from Person A, Person B, and Person C, Complainant does not dispute the Agency’s contention that the latest any of these managers was even employed at Complainant’s facility was 2013. Moreover, the record reveals that all three of these managers had retired prior to the date Complainant filed his formal complaint. Upon review, we find the record in the present case was fully developed. Additionally, we note that Complainant’s September 25, 2019 brief was untimely filed and will not be considered. Regarding the new evidence submitted with the untimely brief, we note that as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available previously. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, §VI.A.3 (Aug. 5, 2015). Because Complainant did not make such a showing, we decline to consider the evidence he submitted on appeal that was not part of the record that was before the AJ when she made her decision. Moreover, even if the additional evidence was considered, it would not change the outcome of our decision. Further, to the extent Complainant is claiming the documents related to a claim of harassment dating back several years, we note harassment was not a claim raised in the present case. Sex discrimination The United States 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 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003). 2019005356 5 Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (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 as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. Upon review, we find that any difference in pay was justified by a factor other than sex. The record reveals that there were a variety of factors that affected pay, including the length of time in a craft position, increases/promotions in that position, the promotional increase in effect at the time of promotion to an EAS, whether the employee was at the same or a different facility which could impact the PFP rating and pay increases through an employee’s career, as well as the facilities’ performance which impacted an EAS employee’s rating. Thus, we find the Agency has met its burden to show any difference in pay was based on a factor other than sex, we find no violation of the EPA. For these same reasons, we find Complainant’s claim of sex-based wage discrimination under Title VII must fail. Race discrimination Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service 2019005356 6 Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). The record reveals that pay discrepancies are based on how each SDO’s career path developed, not their race. Complainant has failed to allege that there were other SDOs similarly situated in all relevant respects, including length of time in craft, when they were promoted, salary at time of EAS promotion, and where they worked. Further, the record revealed that there were African American SDOs who made more money than Complainant thus negating any potential inference of discriminatory animus. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, the Agency’s notice of final action finding no discrimination is AFFIRMED. 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. 2019005356 7 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) 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 (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 September 23, 2020 Date