Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120110554 (E.E.O.C. May. 22, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120110554

Hearing No. 480-2009-00430X

Agency No. 1F-904-0025-08

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 16, 2010 final order concerning her 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., the Equal Pay Act of 1963
(EPA), as amended, 29 U.S.C. § 206(d) et seq., 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Data Conversion
Operator at the Agency’s Los Angeles Bulk Mail Center in Bell, California. Complainant
initially held a Level 5 Parcel Post Distribution Machine Clerk position. In 1994, Complainant
suffered an on-the-job injury and was given a limited duty position, remaining at a Level 5 pay
grade. In September 2002, Complainant and four other employees were offered and accepted
rehabilitation assignments in the video encoding room. The rehabilitation job offers stated that
they would work as Level 4 Data Conversion Operators with “saved salary” status.1

1 The terms “saved salary” and “saved rate” were used interchangeably in the record. The
Employee and Labor Relations Manual states that “saved rate” status is given to employees,
like Complainant, who have accepted permanent rehabilitation job offers and are reassigned to
lower-graded positions due to a work-related injury. By contrast, “saved grade” status is
As a
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result, Complainant occupied the Level 4 Data Conversion Operator position, but retained her
Level 5 salary ($41,991).2

Complainant contacted an EEO counselor regarding matters related to her salary in December
2007. The Agency and Complainant entered into a settlement agreement to resolve the matter
in January 2008. In the agreement, the Agency agreed to ensure that Complainant’s PS Form
50 reflected a change to Level 5 and to reimburse Complainant for any incorrect pay issues
from 2004 through 2008. However, on February 6, 2008, the Agency informed Complainant
that her pay was correct, and she was not due any additional compensation. Complainant
alleged that the Agency failed to comply with the settlement agreement and subsequently
appealed to the Commission. In v. U.S. Postal Serv., EEOC Appeal No. 0120082266
(July 31, 2008), the Commission ordered the Agency to reinstate Complainant’s original EEO
complaint.

The Agency processed Complainant’s original EEO complaint and framed her claim as a claim
of discrimination based on age (68) and disability for the Agency’s failure to revert her to her
original pay grade in violation of a Step 3 arbitration decision. The Agency concluded that
Complainant was attempting a collateral attack on the grievance process and dismissed the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant
again appealed to the Commission.

In v. U.S. Postal Serv., EEOC Appeal No. 0120090194 (Feb. 6, 2009), the
Commission reversed the Agency’s dismissal. The Commission determined that a fair reading
of the original complaint and related counseling materials revealed that Complainant was
claiming that the Agency discriminated against her on the bases of sex (female), disability, and
age when in August 2002, her pay grade was reduced from Level 5 to Level 4 when she was
placed in a rehabilitation position as a Data Conversion Operator. The Commission concluded
that the Agency’s dismissal was improper and remanded this claim to the Agency for further
processing.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The matter was assigned

given to an employee for an indefinite period of time and requires the employee to bid or apply
for a job in that grade to maintain the grade. The Human Resources Manager affirmed that
saved grade status is typically given to employees who receive involuntary reductions as a
result of national automation or plant closure initiatives.
2 These employees, through their union, filed a class action grievance regarding their pay. The
grievance was settled in June 2004, and the agreement stated that the employees were entitled
to Level 5 pay and included the term “saved grade.” In December 2005, the Human
Resources Manager (HRM) attempted to have the saved grade term corrected to reflect the
employees’ actual saved rate status because the employees now believed they were entitled to
saved grade status.
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to an AJ. The AJ determined that Complainant had alleged that the Agency discriminated
against her on the bases of her sex (female), age (62), and disability when:

1. In August 2002, her pay grade was reduced from Level 5 to Level 4, although she was
classified as "saved rate;" when she was placed in a rehabilitation position as a Data
Conversion Operator;

2. The Agency did not raise her pay level at later dates when her co-workers’ pay was
allegedly raised; and

3. The National Reassessment Plan (NRP) created a hostile work environment and that, as
a result, she was constructively discharged.3

The AJ granted the Agency’s motion for summary judgment and issued a decision on August
6, 2010. In the decision, the AJ found that it was undisputed that the Agency effectively
accommodated Complainant’s medical restrictions with a limited duty Data Conversion
Operator position. As to her pay in that position, the AJ determined that Complainant had not
established a prima facie case of discrimination. Specifically, Complainant identified several
comparators whom she claimed remained at the Level 5 pay grade or whose pay was reduced
and then changed back to Level 5. The AJ found that four of the identified comparator
employees were Level 5 employees who accepted Level 4 Data Conversion Operator positions
with saved rate status. The evidence showed that all four of these employees were paid the
same as Complainant.

The AJ found that five other identified comparator employees were not similarly situated to
Complainant. Co-worker 1 (CW1) served as a Mail Handler Equipment Operator and was
never changed to a lower grade level. Co-worker 2 (CW2) was in the same classification as
Complainant until she transferred into a Distribution Clerk position in May 2002, remaining at
Level 5. When CW2 changed positions again to Mail Processing Clerk, she retained her Level
5 grade. Co-worker 3 (CW3) was not similarly situated to Complainant because she never
transferred from her Parcel Post Distribution Clerk position to a lower grade. Co-worker 4
(CW4) was not similarly situated because she was a Mail Handler. Finally, co-worker (5)
(CW5) was not similarly situated to Complainant because although she transferred to a Data
Conversion Operator position, she took disability retirement in May 2005. As a result, the AJ

3 The AJ initially determined that Complainant’s disability discrimination claim regarding the
NRP was identical to the claims raised in McConnell et. al. v. U.S. Postal Serv. (Agency No.
4B-140-0062-06). As a result, the AJ dismissed Complainant’s request for an individual
hearing as to this claim and determined that the claim should be subsumed into the class
complaint. In addition, the AJ determined that Complainant’s clams did not fall within the
Walker et al. v. U.S. Postal Serv., (Agency No. CC-800-0359-03) class definition.
Complainant did not challenge these determinations on appeal, and we exercise our discretion
not to address them further.

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concluded that these five identified co-workers were not similarly situated to Complainant.
The AJ determined that Complainant had presented no other evidence raising an inference of
discrimination. Accordingly, the AJ found that Complainant had not established a prima facie
case of discrimination on the alleged bases.

The AJ concluded that Complainant had not been discriminated against as alleged. The
Agency subsequently issued a final order adopting the AJ’s decision. Complainant submitted
no arguments or contentions on appeal.

ANALYSIS AND FINDINGS

The AJ’s Issuance of Summary Judgment

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. Upon review of the record, the Commission determines that there are
no genuine issues of material fact or any credibility issues which required a hearing and
therefore the AJ's issuance of summary judgment was appropriate.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).

Upon review of the record, we find that Complainant was given a Data Conversion Operator
rehabilitation job offer to accommodate her work-related injury in 2002. Complainant was at
Level 5 prior to the assignment and was given the Level 4 assignment with saved-salary/saved-
rate status. ROI, at 148. Even though Complainant’s PS Form 50 indicated that her grade
changed to Level 4, she still received her Level 5 salary at all times. Id. at 155, 175. In
February 2008, all eligible employees under the collective bargaining agreement received a
one-level upgrade and, as a result, Complainant’s rehabilitation position was upgraded to Level
5. Id. at 161. Complainant still retained her saved-rate status and her salary was upgraded to
$52,536.00. Id. at 156, 161. The record indicates that the salary for a Level 6 employee was
$52,526.00. Id. at 156. The Human Resources Manager maintains that Complainant’s salary
was correctly set pursuant to the Employee and Labor Relations Manual. Id. at 155.

Construing the evidence in the light most favorable to Complainant under the circumstances set
forth herein, the Commission finds no dispute that the allegedly adverse employment action,
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granting Complainant “saved rate” rather than “saved grade” was not adverse. In addition,
there is no dispute that Complainant’s similarly situated co-workers were treated in the same
manner as she was treated. The AJ correctly concluded that Complainant failed to establish a
prima facie case of discrimination on the alleged bases.

To the extent that Complainant alleges a claim under the Equal Pay Act, the Commission finds
that she failed to establish that a violation occurred. To establish a violation of the EPA,
Complainant must show that she received less pay than an individual of the opposite gender for
equal work, requiring equal skill, effort and responsibility, under similar working conditions
within the same establishment. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974);
Arnold v. Dep’t of the Treasury, EEOC Appeal No. 01960490 (July 28, 1998). In the instant
case, Complainant failed to show that the identified male comparators were paid higher wages
for equal work. The undisputed evidence shows that Complainant was paid the same as two
male Data Conversion Operators with Level 5 saved rate status. Additionally, the third
identified male comparator (CW1) was a Mail Handler Operator, was never given a lower-
level rehabilitation job assignment with saved rate status, and was paid less than Complainant
prior to his disability retirement in May 2009. Consequently, the Commission finds that
Complainant failed to show that the Agency violated the EPA.

CONCLUSION

After a review of the record in its entirety, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency's final order, because the Administrative
Judge’s grant of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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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

(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

(Z0610)
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
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”).
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

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 22, 2013
Date