Alycia R.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Apr 18, 2018

0120162020 (E.E.O.C. Apr. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alycia R.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120162020 Agency No. HS-07-ICE-001449 DECISION On June 6, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision 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 (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Personnel Security Specialist (PSS), GS-0080-9 at the Agency’s Threat Management Branch, Adjudication Section, Federal Protective Service (FPS) facility in Chicago, Illinois. Complainant has been employed as a PSS, GS-9, since 1998. In 2003, FPS migrated from the General Services Administration (GSA) to the Department of Homeland Security. At the time, FPS had over 250 different position descriptions, many of which were regional variations of the GS-0080 series. 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. 0120162020 2 Prior to February 22, 2005, the Agency became aware that PSS employees at the GS-9 level may be performing equivalent duties to PSS employees at the GS-11 level. On September 19 - 23, 2005, the Agency's Human Resources office conducted a desk audit for the PSS position description for the regions of Atlanta, Chicago, and San Francisco, which were deemed to have done the most complex PSS work. After the desk audit, Human Resources recommended that all PSS positions nationwide be classified no higher than the GS-9 level. However, the desk audit confirmed that there were PSS employees already classified at the GS-11 level by GSA. Instead of downgrading the PSS employees already classified at the GS-11 level, the Agency chose to “red-line” their positions.2 The Agency redlined the GS-11 positions in order to evaluate and review the classification of the positions once they became vacant. In January 2006, standard position descriptions for the PSS position at the GS-7 and GS-9 levels were issued, implementing the results of the September 29, 2005 desk audit. In January 28, 2008, a reevaluation of the September 19, 2005 desk audit concluded that the positions were still properly classified at the GS-9 level. Specifically, it was determined that the implementation of Homeland Security Presidential Directive 12 (HSPD-12) did not impact the level of knowledge to warrant increasing the grade of the position. On March 22, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), and age (55). In her formal complaint, Complainant wrote, in pertinent part, the following statement: I believe that the agency has applied gender (primarily) and racially discriminatory criteria in [its] employment practices affecting pay grade, earnings and promotional potential ... I believe that, because of my gender, race and age, I am being denied equal pay for equal work when compared to like employees placed elsewhere in the organization and the agency has refused to take any action to upgrade my position as a [PSS] GS-09 to [be] commensurate with an [increase] of duties, responsibility and the increase[d] complexity of my position. Similarly classified males [PSSs] working at the GS-11 and GS-12 levels in other regions enjoy the benefits of those higher grades while having no measurable distinction in duties or performance requirements than those conducted [by] me ... Furthermore, no formal or official explanation has even been provided by management to clarify or justify the existence or continuance of this unequal pay. 2 According to the record, “Red-lining” is a process by which an employee's pay rate is maintained at a level that is above the established maximum range for that employee's classification. Employees can be “Redlined” when their positions are reclassified downward and their current pay rate is above the maximum range for the new classification. 0120162020 3 On April 30, 2007, the Agency accepted the formal complaint for investigation. The Agency framed the accepted issue as follows: On or about January 25, 2007, Complainant became aware that Personnel Security Specialists in other Agency offices, who have responsibilities and perform duties commensurate with hers, were paid at higher grades, and the Agency refused to upgrade her position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision on February 19, 2010 pursuant to 29 C.F.R. § 1614.110(b). The Agency conducted a disparate treatment analysis under Title VII and the ADEA. The Agency determined Complainant failed to establish that she was subjected to discrimination when the Agency did not upgrade her position. Complainant appealed this decision. On appeal, Complainant contended that the Agency erred in finding no discrimination. Specifically, Complainant argued that the Agency recognized the pay disparity and that management's decision to “redline” the higher graded employees only further condoned the discriminatory practice. In addition, noting the Agency's concern about the impact on employee morale, Complainant asserted that the Agency failed to consider how it would be similarly demoralizing for her, someone who was African-American, female, and over the age of 40, to be paid at a lesser rate of pay. Finally, Complainant asserted that management’s refusal to upgrade her position was pretextual and that the desk audit was flawed. In EEOC Appeal No. 0120101776 (September 20, 2011), the Commission vacated the Agency's finding of no discrimination and remanded the matter to the Agency for further processing based on a determination that the Agency had failed to investigate Complainant's Equal Pay Act claim. The Commission stated it was unable to determine from the record whether Complainant and a male comparator (C1), a PSS GS-0080-11, from Region 8, whom Complainant had cited, had indeed performed “equal work.” The Commission noted while the record contained some documentary and testimonial evidence about Complainant's job content, it determined that a supplemental investigation was necessary to obtain additional information about Cl's job content. The matter was remanded to the Agency for a supplemental investigation to ascertain the actual duties which Cl performed as a GS-0080-11 PSS. including: (1) the skill, effort, and responsibility required; (2) the actual duties Complainant performed as a GS-0080-09 PSS, including the skill, effort and responsibility required; and (3) the reasons for the pay difference between Complainant and Cl, both before and after a desk audit. In compliance with the September 20, 2011 EEOC decision, the Agency conducted a supplemental investigation. Thereafter, on May 3, 2013, the Agency issued a final decision on Complainant’s Equal Pay Act claim finding no discrimination. 0120162020 4 Complainant appealed the Agency’s final decision. On appeal, the Commission vacated the Agency's finding of no discrimination and remanded the matter to the Agency for further processing based on a determination that the Agency had misidentified the comparative to which Complainant compared herself regarding her EPA claim. Complainant v. Department of Homeland Security, EEOC Appeal No. 0120132311 (December 11, 2015). Following another supplemental investigation, the Agency issued a final decision on May 4, 2016. The Agency issued a decision finding no discrimination on Complainant’s EPA claim. The Agency noted that Complainant claimed she performed substantially equal work as Comparative 1 (C1), a male employee encumbering a GS-0080-11 nonsupervisory position but had been receiving less pay. The Agency determined that Complainant failed to show that she performed substantially equal work as C1. The Agency noted Complainant stated that as a GS-9 PSS, she was responsible for planning, reviewing, analyzing, evaluating, and processing background investigations, and granting, denying, revoking, or suspending suitability clearances. The Agency noted Complainant also stated she served as acting supervisor in the unit during absence of the supervisor and alternate LAC for the Agency LEADS (Law Enforcement Agency Database) system. The Agency notes the Supervisory Personnel Security Specialist (SPSS), Complainant’s first line supervisor during the relevant time, described Complainant’s duties similarly, but in more detail. The SPSS description included Complainant’s knowledge of both the Electronic Questionnaire for Investigations Processing (e-QiP) and Personnel Investigation Processing (PIP) systems, Complainant’s analysis of information extracted from criminal background and immigration checks and knowledge of the Office of Personnel Management (OPM) guidelines to make suitability determinations. SPSS also stated Complainant’s duties included acting on behalf of the supervisor on conference calls or at meetings, assigning work, and providing necessary information to management regarding the program. Complainant’s second line supervisor provided a similar description of her duties. The Agency noted the position description for the nonsupervisory GS-0080-11 PSS position, occupied by C1, reflected a different level of complexity as compared to the GS-9 position description. The Agency noted the GS-11 PSS “serves as a personnel security specialist with responsibility for conducting and verifying complex and unusual background and pre- appointment contract suitability investigations.” The Agency noted the position description noted the following major duties of a GS-11 PSS: Serves as the principal contact for other government agencies seeking personnel security information; maintain liaison with other …investigative organizations; plans, conducts and adjudicates the most complex security investigations to determine suitability; conducts suitability inquiries …reviews information received…makes the adjudication of suitability of employment reviews background history…reviews new directives, guidelines and regulations for the personnel security program…provides guidance to 0120162020 5 management and to lower graded security specialists involved in the security clearance process… The Agency also noted that C1 indicated that in addition to the duties contained in his position description, his duties also included serving as the ID Badge system administrator and the fingerprint system administrator. C1 indicated that he was also responsible for providing training to all staff on those two systems, and preparing and conducting presentations to contractors, contracting officers, and their representatives. The Agency noted C1’s first line supervisor during the relevant time added that C1 was responsible for providing training to other regions to set up their adjudication processes. The Agency found that although Complainant demonstrated that she was paid less than C1, she has not demonstrated that she performed equal work under similar working conditions. For instance, while both Complainant and C1 performed background investigations, C1’s position description stated that he was responsible for “complex and unusual investigations.” C1 also served as a principal contact for other government agencies seeking personnel information and provided guidance to management and lower-graded security specialists, duties for which Complainant was not responsible. The Agency stated that C1 reviewed directives, guidelines, and regulations for the program, duties, which Complainant did not list as part of her responsibilities. The Agency noted C1 also served as an ID Badging and fingerprinting system administrator, and provided training and presentations to internal and external entities. Thus, the Agency concluded Complainant did not show that she performed substantially equal work, for less pay, under similar working conditions. On appeal, Complainant notes that the Agency claims C1 was responsible for processing complex or unusual background investigations. However, Complainant states that in his declaration, C1 did not list that he was responsible for conducting or processing any complex or unusual background suitability investigations. Complainant explains that C1 stressed his role in the Fingerprinting and ID Badging. Complainant notes C1 stated that Region 8 had two adjudicators and one contract assistant. Complainant states that C1 did not distinguish which of the adjudicators actually processed the complex or unusual background investigation cases. Complainant contends that background investigations are not identified as complex or unusual cases and the basic procedures for adjudicating the cases are the same for a GS-9 and a GS-11. Complainant states that when the cases are returned from OPM each case has been assigned an issue cord or character code with a letter. Complainant explains that the issue code or character code is not always a true reflection of the type of issues or seriousness of issues that may be contained in the background investigation. Complainant states that the Division Director, Headquarters, Personnel Security Division for FPS has not taken any steps to have GS-9s cease processing the most serious or complex cases. 0120162020 6 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination based on race, color, sex, and age, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency found that management did not upgrade Complainant's position because it determined, after conducting a desk audit of the PSS positions in a variety of locations, including those with the most complex work, that the position only supported a GS-9 classification. The Agency noted that while some PSSs were paid at higher grades, management decided to “redline” those GS-11 positions (flagging the positions for review when they became vacant), as opposed to downgrading those employees, based on past management practice and to minimize the impact on employee morale. Upon review, we find that Complainant failed to provide any evidence of pretext in the record. Notwithstanding Complainant's contentions that the Agency's desk audit was flawed, we find that the record is devoid of any evidence that the Agency's actions were motivated by discriminatory animus towards Complainant's race, color, sex, or age. Next, we address Complainant’s Equal Pay Act (EPA) claim. 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, 0120162020 7 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. The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill, effort, and responsibility used to measure the equality of jobs are not precisely definable. Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. §1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. § 1620.17(a). Upon review, we find Complainant did not perform substantially equal work to C1. Complainant’s duties during the relevant time included planning, reviewing, analyzing, evaluating, and processing background investigations, and granting, denying, revoking or suspending suitability clearances. In addition, Complainant acted as a supervisor when her supervisor was absent. The position description for the position occupied by C1, states that the GS-11 PSS “serves as a personnel security specialist with responsibility for conducting and verifying complex and unusual background and pre-appointment contract suitability investigations for the region. Incumbent will provide expert advice, guidance and interpretation on policy matters relating to adjudication and personnel security.” The Division Director, Headquarters, Personnel Security Division for FPS explains that prior to the 2005 desk audit, C1 was at the GS-0080-11 level which included responsibility for providing expertise and assistance to lower graded personnel security specialists. She stated in addition, the GS-0080-11 PSS served as an expert source of information for advice and guidance regarding interpretation of policy and procedures for the Personnel Security Program region- wide. The Division Director stated in comparison, Complainant’s singular focus was designated only to the personnel security functions at the GS-0080-09 level. The Division Director explained after the 2005 desk audit, C1 was at the GS-0080-11 level which included additional duties to support the FPS law enforcement organizations and his position description stated the incumbent would be responsible for providing expertise and 0120162020 8 assistance to lower graded PSSs. In addition, serving as an expert source of information and guidance regarding interpretation of policy and procedures for the Personnel Security Program region-wide. The Division Director states an example of this action occurred when C1 had to testify at a formal hearing in 2013 in U.S. Bankruptcy Court for the District of Colorado. She stated in comparison Complainant’s position had a singular focus designated only to the personnel security functions as the GS-0080-09 level. C1 stated that in addition to reviewing and adjudicating clearances, he served as a liaison between FPS and GSA and many other federal agencies, concerning adjudication of cases. C1 stated he also developed a Contractor Receipt that is still used today to provide the Contracting Officer for each Agency to verify and validate their presence. C1 stated he was the ID Badge system administrator which included maintenance of the system as well as photographing contractor applicants, entering their information into the ID Badge system, and upon Agency request, an ID Badge was generated. C1 stated he was also the fingerprint machine system administrator which included maintenance of the system as well as physical fingerprinting of contractor applicants for processing GSA contractors as well as other federal agencies upon request. C1 explained that he provided training to all adjudication staff, federal or contract, on the use of these two systems. C1 explained that the Region 8 Adjudications Office was unique as they provided face to face interaction with customer contractors within the surrounding Denver area. C1 stated that on several occasions he prepared and provided information in an auditorium setting, to a large group of contractors, contracting officers and/or their representatives. C1 also took responsibility for developing a Regional Adjudications Handbook that was specific to their region since they provided services that other regions in the nation did not. He stated this manual was implemented into regional directives. C1’s first line supervisor during the relevant time stated that C1 performed contract employee adjudications including background investigations and fingerprinting. C1’s supervisor noted that C1 had to conduct training for other regions to set up their processes. Upon review, we find that while both Complainant and C1 were responsible for processing adjudication decisions, the record reveals that C1 had greater responsibility for additional duties to support the FPS law enforcement organizations and his position description and was responsible for providing expertise and assistance to lower graded PSSs. The record reveals that C1 had responsibility for numerous additional duties that Complainant did not have, such as ID Badge System administrator, fingerprinting system administrator, providing training to all staff on those two systems, and providing training to other regions to set up their adjudications processes. Thus, we find Complainant did not establish a prima facie case Equal Pay Act violation. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 0120162020 9 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. 0120162020 10 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 April 18, 2018 Date