Rigoberto A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

0120170227 (E.E.O.C. Feb. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rigoberto A.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120170227

Hearing No. 471-2014-00116X

Agency No. 4J-493-0010-14

DECISION

On October 6, 2016, 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
September 1, 2016, 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. For the following reasons, the
Commission AFFIRMS the Agency’s notice of final action.

BACKGROUND

Complainant worked temporary 90-day or less appointments with the Agency in the 1980s. On
August 28, 1999, Complainant started working continuously at the Agency. From 1999 until 2004
or 2005, Complainant was a part-time carrier. From 2004/2005 until July 2008, Complainant
worked at other craft positions. In July 2008, Complainant became a supervisor, EAS-15. In
August 2009, Complainant was promoted to an EAS-17. In August 2010, Complainant became
an EAS-19.

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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On June 24, 2011, the Chief Human Resources Officer (CHRO) issued a letter regarding the
Agency’s “Nonbargaining Employees Promotional Salary Increase Policy” stating that due to the
fiscal health of the Agency, that effective June 24, 2011, promotional increases would be limited
to three to five percent for promotions (CHRO Letter).

In the fall of 2012, Greater Michigan District Manager, Human Resources (Person A) selected and
hired Complainant for the Greater Michigan District Labor Relations Manager (LRM) position
located in Grand Rapids, Michigan. Prior to October 2012, Complainant was a Labor Relations
Specialist (LRS) in the Atlanta District, EAS-19, with an annual salary of $64,594.

As part of his selection, Complainant received relocation benefits. On October 11, 2012,
Complainant signed a Relocation Repayment Agreement. In consideration of receiving relocation
benefits, Complainant was required to remain at his duty station with the Agency for at least two
years from his report-to-work date. Complainant signed a Relocation Repayment Agreement
which stated that if he violated the agreement, all money he received for the relocation would be
recovered from him as a debt owed to the Agency. Complainant received $27,288.87 in relocation
benefits paid for by the Agency.

Effective October 20, 2012, Complainant was promoted to an EAS-22 as the Greater Michigan
District’s LRM with an annual salary of $67,824. The minimum annual salary for an EAS-22 was
$55,915.

On November 5, 2013, less than a year after working with the Agency, Complainant accepted a
job offer with the Department of Veterans Affairs (VA). Two weeks later, on November 19, 2013,
Complainant verbally made Person A aware that he was being paid less than others and wanted a
pay raise.

On November 25, 2013, Complainant met with Person A regarding his pay concerns. At this
meeting, Complainant stated that he wanted to be paid five percent over the highest paid LRS in
his office, which would have equated to a $16,000 pay raise, or a 24% increase in his salary.

Between November 19 and November 25, 2013, the Greater Michigan District Finance Manager
(Person B) approached Complainant to inform him that he would owe money from the relocation
to Grand Rapids.

On December 2, 2013, Person A responded in writing to Complainant’s pay concerns stating that
the promotion policy authorized a three-percent pay increase for a one-level promotion and a one-
percent increase for each additional level not to exceed five percent. The letter noted the pay
differences between Complainant and the other LRMs nationwide and the LRSs in his office were
due to long years of Agency employment and various pay raises over the years for those
employees. Person A stated Complainant’s request for a pay increase could not be granted.

Complainant resigned from the Agency effective January 11, 2014, and accepted a position with
the VA.
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In March 2014, Complainant was sent an invoice for $10,165.06 for the pro-rated portion of the
relocation benefits he received when he relocated from Atlanta to Michigan.

On March 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), and color (black) when:

(1) On December 2, 2013, he became aware that he was being paid less than other
Labor Relations Managers service-wide and he was the second lowest paid employee on
his staff.

Complainant subsequently amended his complaint alleging that the Agency discriminated against
him on the bases of race (African American), sex (male), and in retaliation for EEO activity when:

(2) He received an invoice dated March 26, 2014, stating that he owed $10,165.06.2

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. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing on August 30, 2016.

The Agency subsequently issued a notice of final action on September 1, 2016. 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.

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 for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We find that the record is adequately developed and there are no
disputes of material fact.

2 Complainant claimed that Person A discriminated against him on the bases of race, sex, and in
retaliation for EEO activity. He claimed Person B discriminated against him in retaliation for EEO
activity.
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Upon review, assuming Complainant established a prima facie case for all bases on his disparate
treatment claims, we find he failed to show that the Agency’s legitimate, nondiscriminatory reason
for its actions was a pretext for discrimination. Regarding claim (1), the record shows that the
LRSs were paid more than Complainant based on earlier employment start dates, when they
became EAS employees, different dates of promotions, number of promotions and/or the regular
pay, merit pay, or cost of living raises received prior to the restriction on raises implemented by
the CHRO on June 24, 2011.

In an attempt to prove pretext, Complainant asserted four reasons why his pay could have been
higher: increased based on the “supervisor differential policy;” increased based on ELM 413.21;
increased based on ELM 412.1b; and increased based on the second part of the June 24, 2011
CHRO Letter. Complainant also cited the following rules and regulations as allowing him to
obtain a salary increase: Handbook EL-312, Section 742; EL-312, Section 743.51; EL-312,
Section 747.2e; ELM Section 411.2; ELM Section 443.1; ELM Section 443.4 and “all EEOC rules
and regulations regarding equal opportunity.”

ELM Section 413.21 stated that “[n]onbargaining unit employees may receive promotion increases
of from 3 to 10 percent, although increases of up to 12 percent may be granted on an exception
basis.”

The Agency stated that the CHRO Letter dated June 24, 2011, superseded ELM Section 413.21 by
limiting promotional increases to no more than five percent. Complainant argued that the CHRO
Letter restricted promotional increases to no more than five percent except (1) “[w]hen a higher
increase is necessary to bring the salary to the minimum of the new grade” or (2) “[f]or promotions
to designated supervisory positions covered under the supervisory differential adjustment
provision, when a higher increase is necessary to bring it to the minimum salary rate.”

The record shows the first exception of the CHRO Letter did not apply to Complainant.
Complainant was promoted to an EAS-22 when he was hired as the Greater Michigan District’s
LRM. Complainant’s new salary as the LRM, after receiving a five percent increase, was $67,824.
The minimum annual salary for an EAS-22 was $55,915. Since Complainant was going to earn
$12,000 more than the minimum salary for an EAS-22, the first exception to the CHRO Letter did
not apply to him.

The second exception in the CHRO Letter, the supervisory differential adjustment provision (SDA
provision) also did not apply to Complainant. Only certain occupation codes were eligible for the
SDA. Also, as stated in ELM Section 413.21d, the SDA was only applicable for promotions to
EAS-15 through EAS-19 positions. Complainant was promoted to the LRM position which was
an EAS-22 position.

Complainant also alleged that his pay could be increased under ELM Section 412.b. Section
412.1b does not apply to Complainant because he was promoted to an EAS-22 position while this
ELM section references appointments to EAS-15 through EAS-19 positions.
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Complainant claims that Person A should have increased his salary when he was promoted or after
he was in the LRM position based on the principles of fairness and equal opportunity found
generally in Handbook EL-312, Section 742; Section 747.2e; ELM Sections 411.2. However,
Complainant does not show how these sections would grant Person A any authority to raise his
salary. We find that Complainant has not shown that the Agency’s legitimate, nondiscriminatory
reason for the pay differentials was a pretext for discrimination.

Regarding claim (2), the Agency articulated legitimate, nondiscriminatory reason for issuing
Complainant an invoice for repayment of relocation benefits. The Agency issued the invoice for
repayment of relocation benefits based on the Agency’s F-15A Relocation Policy and Relocation
Repayment Agreement signed by Complainant. These require employees to remain at their new
duty station with the Agency for at least two years from their report-to-work date. Employees who
violated the agreement and leave before the two-year period will be responsible for repaying all
relocation money to the Agency as a debt.

Complainant left the employment of the Agency before the two years from the date he reported to
his duty station. He received $27,288.87 in relocation benefits. Since he left before the two-year
period, he was billed for a pro rata portion of his relocation benefits in the amount of $10,165.06.

Complainant offered no evidence to show the reasons for issuing the invoice were not true but a
pretext for discrimination. Complainant identified no other employee who was treated more
favorably regarding the repayment of relocation benefits. He alleged the repayment could have
been waived but he did not identify any employee who had a repayment waived by Person A,
Person B, or any other Agency manager responsible for issuing the invoice. The record revealed
Complainant did not even request that Person A waive the repayment of the relocation benefits.
Upon review, we find Complainant did not offer any evidence to show that the invoice was issued
as a result of discriminatory animus.

Regarding the entire complaint, we find that even if the Agency misinterpreted various Agency
rules or policies, there is no indication that any misinterpretation was in any way motivated by
discrimination.

CONCLUSION

Accordingly, the Agency’s notice of final action finding no discrimination is AFFIRMED.
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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.
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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

February 8, 2019
Date