01976160
12-01-1999
Jerry F. Schaecher, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Jerry F. Schaecher, )
Complainant, )
) Appeal No. 01986160
v. ) Agency No. 1I681102296
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
_______________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of sex (male), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>
Complainant claims he was discriminated against as evidenced by the
following incidents: (1) in November 1995 the Statistical Program
Coordinator (SPC) singled him out and required him to use tracking forms
to monitor his time when assigned as a �sampler�<2>; and (2) in November
1995 and March 1996, he was not assigned to perform Origin-Destination
Information System (ODIS) testing in favor of two female Postmasters. We
accept the appeal in accordance with EEOC Order No. 960.001. For the
reasons that follow, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that complainant's position as a PS-06 Data Collection
Technician was eliminated during the agency's 1993 restructuring,
and he became a PS-05 Distribution Clerk,<3> the position he held when
this matter arose. Complainant worked at the agency's Grand Island,
Nebraska postal facility located in the Central Plains District.
Complainant contends that SPC, a female, favored other female employees,
and he received less favorable treatment as a consequence.<4> Believing
he was a victim of sex discrimination regarding the referenced incidents,
complainant sought EEO counseling and, subsequently, filed complaints
on December 27, 1995 and April 17, 1996. The agency consolidated these
complaints for investigation, and issued complainant a FAD, finding
no discrimination.
The FAD concluded that complainant failed to establish a prima facie
case of sex discrimination because he presented no evidence that
similarly situated individuals not in his protected class were treated
differently under similar circumstances. Regarding the first incident,
the FAD concluded that the evidence showed that all of the �samplers,�
including the female Postmasters, were required to complete and submit
time tracking forms, and that this monitoring was a routine function of
SPC. Regarding the second incident, the FAD concluded that complainant,
as a PS-05 clerk, was not �similarly situated� to the EAS-11 and EAS-13
female postmasters he identified as comparators.
On appeal, complainant contends that the agency violated its agreement
with the union when it permitted postmasters (management) to perform
ODIS testing (bargaining unit work). In support of this contention,
complainant submits a �class action� �Opinion and Award� from two
arbitrations ordering the agency to stop the practice and to reimburse
complainant (and also another male clerk at a different facility) for
the lost work opportunity. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), the Commission agrees with the agency that
complainant failed to establish a prima facie case of sex discrimination
regarding the first incident, because he failed to present evidence
that he was the only worker required to complete time tracking forms.
The record shows that the female postmasters, as well as other data
collection technicians, also completed these forms when engaged
as samplers. However, concerning the second incident, we find that
complainant has established a prima facie case of sex discrimination,
notwithstanding the lack of comparative evidence, because he has otherwise
established an inference of sex discrimination by showing that he was
qualified to perform ODIS testing and eligible to do so, but that two
female postmasters were instead given the assignments in violation of
the union agreement. See generally Behar v. U.S. Postal Service, EEOC
Request No. 05940787 (June 2, 1995). We CLARIFY the FAD accordingly.
We next find, however, that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we
note that the evidence shows that the postmasters were being used as
samplers pursuant to an �exception� to the prohibition against managers
doing this work, and that this practice was in place prior to SPC
coming into the position. Although this �exception� was later found
to violate the union agreement, SPC had no input into the decision,
which was promulgated from the agency's Headquarters in 1991. Therefore,
although the exception was an error on the part of the agency, it is
not evidence of discrimination in the instant case. Review of the record
also discloses that SPC was entitled to use her discretion in authorizing
the selection of the �samplers,� and that complainant was not a first
choice for this assignment. According to their affidavit testimony,
both the Plant Manager and the Data Collection Technician responsible
for scheduling ODIS testing in complainant's District, informed SPC
that others qualified to do the ODIS testing had better performance
than complainant, and that there was concern that complainant had made
false entries on his time tracking records. Although complainant denies
the validity of both of these reasons, he submits no evidence to rebut
either of them. On the other hand, the record contains documentation
regarding the identification of complainant's alleged false time entries
and proposed actions by the agency to address the situation. Moreover,
the record shows that at least one male postmaster had been used to do
ODIS testing during this period, and that the agency had six female and
nine male data collection technicians in the Central Plains District
eligible to perform ODIS testing. We find that this evidence further
belies complainant's claim of sex discrimination in this case. Therefore,
we conclude that complainant has failed to show by a preponderance of
the evidence that the agency's actions were motivated by discriminatory
animus toward his sex.
Accordingly, after a careful de novo 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 FAD as CLARIFIED herein, and concur with the agency's finding of
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
December 1, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.
2�Sampler� assignments required travel between postal facilities within
a region for the purpose of collecting and in-putting various types of
data, including ODIS testing.
3Because complainant had been a data collection technician, he was
qualified to perform �sampling� assignments.
4Complainant also alleges a violation of the Equal Pay Act (EPA)
arguing that allowing female postmasters to perform ODIS testing
instead of him deprived him of a higher level of pay. The EPA was
enacted to remedy the problem of sex-based wage discrimination. It
stands for the straightforward proposition that "employees doing
equal work should be paid equal wages, regardless of sex.� Goodrich
v. International Brotherhood, of Electrical Workers, 815 F.2d 1519, 1523
(D.C. Cir. 1987). The EPA mandates that an employer not discriminate
"within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees
in such establishment at a rate less than the rate at which he pays
wages to employees of the opposite sex in such establishment for
equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar
working conditions...." 29 U.S.C. 206(d) (1). Based on these tenets,
we find that complainant has not set forth a cognizable claim under the
EPA because he is not performing �equal work� as compared to the female
postmasters. Instead, complainant's claim is properly considered under
Title VII and the disparate treatment theory of discrimination because
he is claiming that he has been excluded from performing ODIS testing
in favor of female postmasters, thus depriving him of this opportunity
and possibly a higher pay level.