Alice A.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120180885 (E.E.O.C. Aug. 7, 2019)

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

Alice A.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120180885

Hearing No. 540-2015-00137X

Agency No. 2014-25860-FAA-06

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s final order concerning an
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. and
the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. The Agency’s decision
finding no discrimination is AFFIRMED.

BACKGROUND

Prior to the events in question, Complainant was an Operations Manager (MSS-3) at Chicago
O’Hare Terminal Radar Approach Control (TRACON), a level 12 facility. Her salary was at the
congressional cap of $179,700. In 2010, Complainant bid on three open vacancies for positions
in the Phoenix area. Complainant was selected by Person A for the Air Traffic Manager (ATM)
position (MSS-4) at the Scottsdale Towers (SDL) which was a level 7 facility. In accepting the
ATM position at SDL on January 20, 2011, Complainant’s salary was reduced to $136,223.

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 January 16, 2014, Complainant applied for a Supervisory Air Traffic Control Specialist
(Support Manager, MSS-3) position at Phoenix TRACON. Person A was the Selecting Official
for the position. Complainant was ultimately selected for this position and her salary was
$145,618.

On November 20, 2014, Complainant filed an EEO complaint. Complainant identified the
following claims:

1. Complainant alleged that she was subjected to discrimination because of her sex
(female) when in August 2014, upon her selection to the position of Support
Manager, she was:

(a) given only a five percent increase in salary, which is less than the amount
she was entitled to receive; and

(b) effectively denied pay retention for the position she accepted in 2011 as Air
Traffic Manager at the Scottsdale Air Traffic Control Tower (ATCT) under
FAA Job Announcement AWP-ATO-11-14ALA11-125985 due to the
Agency’s decision to advertise the position as permanent, rather than a
temporary position.

2. Complainant alleged that she was subjected to discrimination based on reprisal
(current EEO activity) when on June 14, 2016, she was denied official time and
was informed that only direct preparation for the hearing itself would be allowed.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant
requested a hearing. The Agency submitted a motion for a decision without a hearing.
Complainant filed an objection. The AJ subsequently issued a decision by summary judgment in
favor of the Agency. The Agency issued a final order fully implementing the AJ’s decision finding
no discrimination on December 18, 2017.

ANALYSIS AND FINDINGS

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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
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110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

First, we address Complainant’s contention that the Agency violated the EPA. The United States
Supreme Court articulated the requirements for establishing a prima facie case of discrimination
under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima
facie case of a violation under the EPA, a complainant must show that she or he received less pay
than an individual of the opposite sex for equal work, requiring equal skill, effort, and
responsibility, under similar working conditions within the same establishment. Sheppard v.
EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied,
EEOC Request No. 05A10076 (August 12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that the
difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a
seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality
of production of work (also referred to as an incentive or piecework system); or, (4) a differential
based on any factor other than sex. Id.

Upon review, we find that any difference in pay was justified by a factor other than sex. The
record reveals that on July 4, 2012, new MSS (Managers, Supervisors, and Specialists) pay rules
came into effect, referred to as EMP-1.29a. In relevant part, the Air Traffic Organization (ATO)
Career Enhancement and Career Progression Program under the Career Enhancement Program
(CEP) clarifies those situations when pay retention would be appropriate. ATO career
enhancement assignments under EMP-1.29a, paragraph 3a are defined as:

Career Enhancing (CE) assignments are permanent or temporary transfers (greater than 12
months) or movements to an equivalent or a lower career level designed to broaden the
experience and qualifications of individuals to further DOT/FAA/LOB/SO mission and/or
meet succession planning goals. Career Enhancing assignments include the following
elements:

• Position is permanent
• Limited Pay Retention: Pay retention is subject to a 3-year limit
• All rules apply only if you haven’t previously held the position on a permanent
basis at the same level facility.

ATO career progression assignments under paragraph 3b are defined as follows:

Career Progression (CP) assignments are permanent promotions, transfers or MSS
movements that provide critical expertise that further the DOT/FAA/LOB/SO mission.
These assignments are intended to encourage good pools of qualified candidates. CP
assignments offer diverse experiences, which assist the Agency in meeting succession
goals, and include the following elements:
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• Pay Retention (No loss in pay when following a recognized career progression, and
Check/Return to Previous Rate)
• Applies to positions not previously held on a permanent basis.

The pay rule describes the applicability of “Highest Previous salary (in career enhancement)” in
paragraph 4 as follows:

If someone takes a career enhancement job and is adjusted into a lower pay band, then that
person makes a career progressive move, the highest previous pay that fits in the new band
shall be applied. (If it fits in the band, they should be made whole by bringing them back
to the salary that they would have had, had they not taken the risk. The goal is to not punish
people for progression along a recognized career path).

Complainant argues that Comparative 1 was given pay retention when he moved from a MSS-3
position to a MSS-4 position on January 21, 2014, prior to the effective date of EMP-1.29a.
However, the record shows that EMP-1.29a came into effect on July 4, 2012. Thus, Comparative
1’s relevant change in position occurred after the implementation date of EMP-1.29a. We note
Complainant’s acceptance of the ATM position at SDL occurred before EMP-1.29a’s
implementation date. Accordingly, we find no violation of the EPA.

Regarding her remaining claims, in order to successfully oppose a decision by summary judgment,
a complainant must identify, with specificity, facts in dispute either within the record or by
producing further supporting evidence, and must further establish that such facts are material under
applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to
support a finding that the agency was motivated by discriminatory animus. Here, however,
Complainant has failed to establish such a dispute. Even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s
favor. We note that Complainant has not challenged the Agency’s decision regarding claim 2
(official time denial) and we therefore find no reason to address this claim.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision.

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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

August 7, 2019
Date