01a00194
06-22-2000
Brenda J. Hailey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Brenda J. Hailey, )
Complainant, )
) Appeal No. 01A00194
v. ) Agency No. 1H-302-0031-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), sex (female), and physical disability (Carpel
Tunnel Syndrome), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges she
was discriminated against when, on November 3, 1997, her pay was reduced
from pay level 6 to pay level 4. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was employed
at the agency's North Metro Processing & Distribution Center, Atlanta,
Georgia facility. Complainant alleges she has Carpel Tunnel Syndrome as a
result of an on the job injury in 1992. She states her physician reports
that her condition is permanent. Subsequent to her injury, complainant
was placed into a limited duty position, where she states part of her
duties were Data Collection and Hand Stamp. Complainant alleged that
in November 1997, her pay level was reduced from Level 6 to Level 4.
She claims that another woman (Caucasian) performed the same work that
she did, but did not have her pay reduced.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently, filed a complaint on March 21, 1998. At the
conclusion of the investigation, complainant failed to request a hearing.
The agency then issued a final decision.
In its decision, the agency found the record revealed the following facts:
between September 10, 1988 and February 26, 1997, complainant held a Flat
Sorter Machine Operator, Level 6 position. By letter dated April 9, 1997,
the agency informed complainant that her position would be abolished
no later than April 12, 1997. That letter also informed complainant
that she would be saved grade until she bid on a position, otherwise,
she would be assigned to a position at or below her pay level.
In its decision, the agency found that, despite complainant's claim
that a comparative employee (Caucasian woman) was paid at a higher level
while performing the same work, complainant failed to establish a prima
facie case of race, sex or disability. Specifically, the agency found
complainant presented no evidence that similarly situated individuals
not in her protected classes were treated differently under similar
circumstances. Rather, the agency found complainant and the comparative
were paid at the level of the position they held, as reflected on their
SF-50.<2>
The agency then found that complainant failed to show that the agency's
reasons for its actions were a pretext for discrimination. As such,
it determined complainant was not discriminated against as alleged.
On appeal, complainant contends that the agency failed to properly inform
her about her right to request a hearing before an EEOC administrative
judge. Complainant also submitted documentation related to her worker's
compensation claims, as well as EEO complaints she has filed since she
filed the instant complaint.
As an initial matter, we find the record reveals complainant received
the Report of Investigation and right to request a hearing on May 5,
1999. She did not request a hearing, however, until August 13, 1999.
Although she claims that she was not properly informed of her rights when
she spoke with an agency official, the record reveals that complainant
received her notice of rights, and was properly informed of her right
to request a hearing within thirty days. She failed to timely do so,
and the agency issued a final decision.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), the Commission agrees with
the agency that complainant failed to establish a prima facie case
of discrimination on any bases.<3> As for her claim of race and sex
discrimination, we agree with the agency that complainant failed to show
that she was treated differently than similarly situated individuals
not in her protected class. We also note the record contains no other
evidence that would support an inference of discrimination. See O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).
Assuming complainant established a prima facie case on the bases of
race, sex or disability, the record reveals complainant's Flat Sorter
Machine Operator position was abolished in April 1997. The Report of
Investigation reports that the comparative's position was not abolished.
The record further reveals complainant failed to bid on another position,
and thus, she was placed into a position at a lower pay level, according
to the letter dated April 9, 1997. Complainant contends on appeal that
the agency is prohibited from lowering the pay level of limited duty
employees. Even if complainant is correct, we find insufficient evidence
in the record that establishes complainant's pay level was lowered because
of a protected class. We also note for the record that on January 16,
1998, complainant accepted a limited duty clerk position.
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
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
June 22, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2An SF-50 dated February 26, 1997, reports complainant works as a Flat
Sorter Machine Operator at pay level 6. An SF-50 dated May 29, 1997
states complainant works as a Mail Processor at pay level 6. However, by
SF-50 dated July 1, 1997, complainant's pay was adjusted to pay level 4.
The only documentation in the record regarding the comparative is an
SF-50 dated June 3, 1998, and reports the comparative works as a Flat
Sorter Machine Operator at pay level 5.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.