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

Equal Employment Opportunity Commission

May 22, 2014

0120121172 (E.E.O.C. May. 22, 2014)

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
(Southeast Area),
Agency.

Appeal No. 0120121172

Hearing No. 150-2007-00234X

Agency No. 4H-330-0017-07

DECISION
On December 19, 2011, Complainant filed an appeal 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 decision that it has complied with
the Agency’s final order.

BACKGROUND
On December 28, 2006, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Hispanic) and color (white) when:
on October 27, 2006, Complainant became aware that he was not selected for the position of
Driver Instructor/Examiner (DIE).

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on October 5, 2007, and issued a bench decision on October 18, 2007.

In her decision, the AJ found the Agency subjected Complainant to discrimination based on his
national origin and color when he was not selected for the DIE position. As to remedies, the
AJ ordered the Agency to promote Complainant to the position of DIE, effective the date the
Selectee was placed in the position. The AJ ordered the Agency to conduct training for the
named responsible management officials. The AJ stated the Agency should pay Complainant
0120121172

2
for the expenses and costs he incurred related to the processing of the case. The AJ noted that
attorney’s fees would not be awarded since Complainant was not represented by an attorney.
The AJ noted that Complainant requested out-of-schedule pay; however, she found that
Complainant was not entitled to out-of-schedule pay. The AJ stated no back pay was awarded
as the DIE position was a lower pay grade than the position Complainant held at the time in
question. Finally, the AJ noted Complainant did not request compensatory damages.

The Agency subsequently issued a notice of final action on December 5, 2007. The Agency’s
final action fully implemented the AJ’s finding that Complainant proved that the Agency
subjected him to discrimination as alleged.

On appeal, Complainant states he has been trying to get paid from his prior EEO complaint for
the last four months. Complainant notes that he sent the AJ a letter trying to get this problem
resolved. Complainant states that he notified the Agency in writing of his concerns; however,
they have not responded to his letter. Complainant attaches a copy of an August 29, 2011
letter he sent to the AJ and a September 20, 2011 letter he sent to the Agency. In his letters,
Complainant cites the AJ’s finding that he was not entitled to out of schedule pay.
Complainant states that it seems that everybody involved with this case has gotten out-of
schedule pay except him. Specifically, he states that after the Selectee was removed from the
Driver Safety Instructor (DSI) position, the Selectee received $5,000 from a grievance.
Complainant also states that Employee A, the new DSI, received $16,000 out-of-schedule pay
from a grievance settlement, and got the job without it being posted.

In response, the Agency requests the Commission dismiss Complainant’s appeal as being
untimely. The Agency states that under the procedures established in 29 C.F.R § 1614.504,
Complainant had 35 days to notify the Agency of noncompliance and 35 days thereafter to file
an appeal with the Commission. The Agency claims there is no evidence in the record that
Complainant timely notified the Agency of the alleged noncompliance. The Agency states that
the awards and/or settlements referenced on appeal by Complainant for the Selectee and Person
A were made through the Agency's grievance procedures and thus, were not subject to
challenge through the EEO process.

ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not
been the subject of an appeal or a civil action shall be binding on the Agency. The regulation
provides further that if a complainant believes that the agency has not complied with the terms
of the final decision, that the complainant shall notify the Agency EEO Director, in writing,
within thirty days of the date on which the complainant knew or should have known of the
noncompliance. Id.

If Complainant does not receive a response or is not satisfied with said
response, the Complainant may appeal to the Commission for a determination as to whether the
agency is in compliance. 29 C.F.R. § 1614.504(b).
0120121172

3
On appeal, Complainant contends that he should have been awarded out-of-schedule pay. The
Commission finds that the AJ specifically stated that Complainant was not entitled to out-of-
schedule pay as relief for his complaint. Further, the Commission finds that Complainant's
appeal requesting out-of-schedule pay as a remedy is untimely raised as the Agency decision
was issued in December 2007, and Complainant did not challenge the remedies until 2011.
Thus, Complainant is not entitled to out-of-schedule pay. Complainant has not claimed that the
Agency has failed to otherwise comply with the relief ordered.

CONCLUSION
Accordingly, the Agency’s decision that it has complied with its final order is AFFIRMED.

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 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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).
0120121172

4
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

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
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”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 22, 2014