01a02919
09-21-2000
Andrew Sheppard, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
Andrew Sheppard, )
Complainant, )
)
v. ) Appeal No. 01A02919
) Agency Nos. 0-9700003-HQ
Ida L. Castro, ) 0-9700056-HQ
Chairwoman, ) 0-9800050-HQ
Equal Employment Opportunity )
Commission, )
Agency. )
____________________________________)
DECISION
Complainant timely filed the instant appeal on January 7, 2000, from the
agency's<1> final order dated December 7, 1999, stating that the agency
would fully implement the decision of the Administrative Judge (AJ)<2>
to award no relief pursuant to a finding of no discrimination.<3>
The instant matter concerns three consolidated complaints. In agency
number 0-9700003-HQ, complainant<4> alleged that he was discriminated
against on the bases of race (Black) and sex (male) when he was not
selected for the position of District Director for the following District
Offices: Los Angeles; Atlanta; Philadelphia; and Detroit. In agency
number 0-9700056-HQ, complainant alleged that he was discriminated
against on the basis of sex (male) when the Regional Attorney in the
Detroit District Office was paid a higher salary than complainant (Equal
Pay Act claim). In agency number 0-9800050-HQ, complainant alleged that
he was discriminated against on the bases of race (Black), sex (male),
and in retaliation for prior protected activity when he was not selected
for the position of District Director for the following District Offices:
Indianapolis and Birmingham.
Complainant requested a hearing on the matter and an AJ issued a summary
judgment decision without holding a hearing on November 24, 1999. The AJ
issued a finding of no discrimination on all claims. In the November
24, 1999 decision, the AJ, in response to a motion filed by the agency,
imposed sanctions on complainant based upon the following findings:
The Complainant knowingly failed to respond in any substantive manner
to the Request for Admissions.
[Complainant's] contention that the information sought was somehow
incorrect, false or unlawful is without merit.
As a result of such findings, the AJ imposed the following sanctions:
(1) the AJ drew an adverse inference that the requested information
would reflect unfavorably on the complainant who refused to provide the
requested information; and (2) the AJ considered the matters to which
the requested information or testimony pertained to be established in
favor of the agency.
Regarding the non-selection claims (0-9700003-HQ and 0-9800050-HQ), the
AJ, in response to a motion filed by the agency, granted summary judgment
after finding that there were no genuine issues with regard to material
facts or credibility. The AJ concluded that complainant failed to rebut
management's explanation for his non-selections and failed to offer any
persuasive evidence that his race, sex, and/or reprisal played a role
in the selection process. The AJ explained the following rationale for
determining there were no genuine issues as to material facts:
In reviewing the Complainant's submission, he does not identify any
disputes regarding background matters. For example, the Complainant and
the Agency agree as to which positions he applied, how he was rated,
and who was selected. They both concurred that [the Director of the
Office of Field Programs] played the principal role in the selection
actions except for the placement of [Person A] in the Detroit District
Office. The parties also agree that [the Director of the Office of Field
Programs] relied, in part, on the Complainant's alleged reputation when
she recommended that other candidates be selected.
While the Complainant challenged [the Director of the Office of Field
Programs'] reliance on information regarding his behavior, the Motion for
Sanctions established an inference that favors the Agency. In addition,
the evidence undermines the Complainant's claim that they were false.
The record, therefore, does not contain any genuine issue with respect
to material matters regarding the Complainant's prior conduct.
. . . .
Based on this, the Administrative Judge finds no genuine dispute regarding
any material facts.
A. Was the Decision to Impose Sanctions on Complainant Proper?
The AJ imposed sanctions on complainant for failing to respond
�in any substantive manner� to the agency's Request for Admissions.
The regulation set forth at 64 Fed. Reg. 37,644, 37,657 (to be codified
and hereinafter cited as 29 C.F.R. � 1614.109(f)(3)) provides:
When the complainant . . . fail[s] without good cause shown to respond
fully and in timely fashion to an order of an administrative judge, or
requests for the investigative file, for documents, records, comparative
data, statistics, affidavits, or the attendance of witness(es), the
administrative judge shall, in appropriate circumstances:
Draw an adverse inference that the requested information, or the testimony
of the requested witness, would have reflected unfavorably on the party
refusing to provide the requested information;
(ii) Consider the matters to which the requested information or testimony
pertains to be established in favor of the opposing party.
The instant record contains no written Order by the AJ requiring the
instant complainant to substantively answer the Request for Admissions
at issue. In his decision, the AJ does not make reference to any such
written or oral Order. The record shows that on May 19, 1999, the agency
served complainant with its Requests for Admission. Complainant filed a
�Combined Motion to Halt Discovery and To Compel [production of certain
documents]� dated June 14, 1999. The agency filed the following motion
dated June 23, 1999: �Agency's Response to Complainant's Motion to
Halt Discovery and to Compel and Agency's Cross Motion to Compel the
Complainant to Respond to the Agency's Discovery Request.� On July 8,
1999 the AJ issued the following Discovery Order:
The Complainant's motion to require the [sic] produce 396 Reports is
denied.
The Complainant's motion to require the Agency to [sic] Rating and Ranking
materials is sustained in part and denied in part. The Agency shall,
in a timely manner, provide to the Complainant the Rating and Ranking
Composite Sheets for . . .
The Complainant's motion to halt discovery by the Agency is denied.
The Complainant's requests for fees and costs is denied.
The Management Directive explains that a party may respond to a discovery
request by providing a �[w]ritten opposition to the request/motion for
a protective order.� EEOC Management Directive (MD) 110, as revised,
November 9, 1999, Chapter 7, Section IV(D)(2)(b). If a party fails to
fully respond to a request for discovery, then such a failure shall
form the basis for a motion to compel discovery. Id. at Chapter 7,
Section IV(D)(3)(a). Where a motion to compel discovery is approved,
the administrative judge shall issue a written order to comply with the
request. Id. at Chapter 7, Section IV(D)(5)(b). A failure to respond
or follow an order to comply with a request for discovery may result
in sanctions. Id. at Chapter 7, Section IV(D)(6).
The July 8, 1999 Order did not compel complainant to comply with the
agency's May 19, 1999 Request for Admissions. The AJ has not claimed in
his decision or in any other Order or correspondence, that the intention
of the July 8, 1999 Order was to compel complainant to comply with the
agency's May 19, 1999 Request for Admissions. Furthermore, even if the
intention of the July 8, 1999 Order was to direct complainant to comply
with the agency's May 19, 1999 Request for Admissions, the Order did not
set forth any time limit for compliance and did not clarify what sanctions
or other actions might be imposed for failure to comply with the Order
within any particular time limit. See id., Chapter 7, Section III(B),
n.40.
In the instant matter, the AJ never ruled on the agency's Cross Motion
to Compel the Complainant to Respond to the Agency's Discovery Request
and never ordered complainant to comply with the agency's May 19,
1999 Request for Admissions. Therefore, because complainant did not
violate any order of the AJ and because complainant did indeed provide a
�response� (in the form of a motion to halt discovery) to the discovery
request, we find that sanctions were inappropriate in the instant matter.
Complainant was simply not given the requisite notice that he was
required by a certain date to submit substantive responses to the May
19, 1999 Request for Admissions or be subject to particular sanctions.
Because of our disposition, the Commission does not address in this
decision complainant's argument that he should not be required to
substantively respond to the May 19, 1999 Request for Admissions.
Was the Administrative Judge's Decision to Issue a Decision Regarding
the Non-Selection Claims without Holding a Hearing Appropriate?
A decision may be issued without holding a hearing when all material
facts are not in genuine dispute and there is no genuine issue as to
credibility. 29 C.F.R. � 1614.109(g).
The record shows that the credibility of the Director of the Office
of Field Programs was a key component to complainant's claims of
discriminatory non-selections. Complainant essentially claims that the
Director's articulated reasons for not selecting complainant are false
and that she relied on discriminatory factors for his non-selection.
An important facet of complainant's argument is what information the
Director knew of complainant's background in the agency (including prior
EEO activity) and when she knew of such information. The AJ found that
while complainant challenged the Director's �reliance on information
regarding his behavior, the Motion for Sanctions established an inference
that favors the Agency.� Now that the Commission has ruled that sanctions
were inappropriate, there is no inference that favors the agency.
The Commission finds that once the imposition of sanctions is removed,
the credibility of the Director of the Office of Field Programs is in
genuine dispute and that therefore the issuance of a decision without a
hearing regarding the non-selection claims was inappropriate. Therefore,
we shall remand these claims for a hearing.<5>
C. Equal Pay Act Claim (0-9700056-HQ)
The Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq.,
was enacted to remedy the problem of sex-based wage discrimination.
Telford v. Department of the Army, EEOC Appeal No. 01973892 (Nov. 2,
1999) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195
(1974)). In essence, it requires that "employees doing equal work
should be paid equal wages, regardless of sex." Id. (quoting 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).
The United States Supreme Court articulated the requirements for
establishing a prima facie case of discrimination under the EPA in Corning
Glass Works. To establish a violation of 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. Telford,
EEOC Appeal No. 01973892 (citing Corning Glass Works, 417 U.S. at 195;
Arnold v. Department of the Treasury, EEOC Appeal No. 01960490 (July
28, 1998); 29 C.F.R. � 1620.14(a)). Once the complainant has met this
burden, an employer may avoid liability only if it can prove that the
pay difference is justified under one of the four affirmative defenses
set forth in the EPA, namely: (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 other factor other than sex. Id. (citing 29
U.S.C. � 206(d)(1); Corning Glass Works, 417 U.S. at 196-97).
The requirement of "equal work" does not mean that the jobs must be
identical, but only that they must be "substantially equal." Id. (citing
Corning Glass Works, 417 U.S. at 203, n. 24; Horner v. Mary Institute,
613 F.2d 706, 714 (8th Cir. 1980); Laffey v. Northwest Airlines,
Inc., 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).
An analysis of comparative skills and responsibilities is most
problematic when it involves executive or professional employees.
Telford, EEOC Appeal No. 01973892 (citing B. Schlei & P. Grossman,
Employment Discrimination Law, p. 59 (2d ed. Supp. 1991)). The primary
approach in determining the equality of jobs is an analysis of overall
job content. Id. (citing Angelo v. Bacharach Instrument Co., 555 F.2d
1164, 1173 (3rd Cir. 1977)). Courts have looked to whether the jobs share
"a �common core' of tasks, i.e., whether a significant portion of the two
jobs is identical." Id. (citing Fallon v. Illinois, 882 F.2d 1206, 1209
(7th Cir. 1989)). In an EPA case, the focus is not on job descriptions
or titles, but on job requirements and performance. Id. (citing Simkins
Finucan v. Postal Rate Commission, EEOC Appeal No. 01914057 (May 20,
1993)). In that case, we found that a female attorney's job was not
comparable to those of higher paid male attorneys because we found that
while some of the job tasks were the same, there was a difference in
the level of the difficulty of assignments and the supervision required.
Id.
The AJ in the instant matter found that issuing a decision without
holding a hearing on the EPA claim was appropriate because there were no
genuine issues with regard to material facts or credibility. The AJ did
not rely on his imposition of sanctions in his determination to issue a
decision without holding a hearing on the EPA claim. The AJ concluded
that complainant failed to prove he was discriminated against on the
basis of sex in his EPA claim.
Complainant claimed that the Regional Attorney for the Detroit District
Office [Person B] was hired at the GM-15, Step 9 level on March 22,
1993, while complainant was being compensated at the GM-15, Step 4 level
in his position as Deputy Director for the Detroit District Office.
The AJ found:
A review of the position description for the Deputy Director and the
Regional Attorney positions reveals that, for purposes of pay, these are
comparable jobs in which incumbents would be on the same GM-15 pay level.
The Complainant's claim, therefore, has nothing to do with the overall
nature of the job.
The Complainant is objecting to the fact that this particular employee,
[Person B], was hired at a greater step level within the GM-15 level
than he was.
. . . .
Even if the Complainant could establish a prima facie claim, management
offered a legitimate, nondiscriminatory reason when it explained that
[Person B] was offered a salary at the GM-15, Step 9 level, because that
was the only way to competitively hire her for that position [under the
superior qualifications appointment prescribed by 5 C.F.R. � 531.203(b)].
In other words, the Agency had to offer this amount of money so that
[Person B] would leave her job at a comparable pay rate.
. . . .
The Complainant's arguments do not address this basic contention
by management. He offered no information or evidence to show this
explanation was pretextual or that sex played a role in this decision.
Without such a showing, the Complainant cannot sustain his claim of
discrimination.
On appeal complainant has failed to challenge the AJ's finding that
Person B was offered a salary at the GM-15, Step 9 level, because
that was the only way to competitively hire Person B for the Regional
Attorney position. The Commission finds that the AJ properly issued a
decision without holding a hearing on the EPA claim. The Commission finds
that even if the Regional Attorney and complainant (as Deputy Director)
performed equal work, requiring equal skill, effort, and responsibility,
complainant has failed to rebut the agency's non-discriminatory
explanation that it paid the Regional Attorney more than complainant for
a reason other than sex. Therefore, we find that the agency properly
found that complainant failed to show that the agency violated the EPA
in this claim.
CONCLUSION
The agency's final order finding no discrimination regarding the
non-selection claims is VACATED and we REMAND the matter to the agency
in accordance with the Order set forth herein. The agency's decision
finding no discrimination regarding the EPA claim is AFFIRMED.
ORDER
The agency shall arrange for the assignment of an Administrative Judge
(AJ) to hold a hearing on the remanded claims in an expeditious manner.
The agency is directed to submit a copy of the complaint file to an
Administrative Judge within 15 calendar days of the date this decision
becomes final. The agency shall provide written notification to the
Compliance Officer at the address set forth herein that the complaint
file has been transmitted to the AJ. Thereafter, the AJ shall issue
a decision on the remanded claims in accordance with the regulation
set forth at 64 Fed. Reg. 37,644, 37657 (to be codified as 29 C.F.R. �
1614.109) and the agency shall issue a final action in accordance with
the regulation set forth at 64 Fed. Reg. 37,644, 37657 (to be codified
as 29 C.F.R. � 1614.110).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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:
Frances M. Hart
Executive Officer
Executive Secretariat
September 21, 2000
Date
1In the instant matter the EEOC is both the
respondent and the adjudicatory authority. The Commission's adjudicatory
function is separate and independent from those offices charged with
the in-house processing and resolution of discrimination complaints.
In this decision the terms �Commission� or �EEOC� will be used when
referring to the adjudicatory authority and the term �agency� will be
used when referring to the respondent part in this action.
2The AJ in the instant matter was not an employee of the EEOC.
3On 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.
4Complainant, during the relevant time period of the alleged
discrimination, held the position of Deputy Director in the St. Louis
District Office.
5Although the AJ found that there was no reasonable expectation that
complainant would be available at any time in the near future because
complainant characterized himself as �totally disabled,� the AJ also
stated that complainant's attorney suggested setting a hearing date
in January or February 2000. The Commission can not find based on the
instant record that complainant will be unable to take part in a hearing
because of any medical condition.