Andrew Sheppard, Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity CommissionSep 21, 2000
01a02919 (E.E.O.C. Sep. 21, 2000)

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.