01973892
11-02-1999
Anna Telford, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Anna Telford, )
Appellant, )
)
)
v. ) Appeal No. 01973892
) Agency No. ATASFO9411E0450
) Hearing No. 110-96-8042X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
________________________)
DECISION
On April 11, 1997, appellant filed a timely appeal with this Commission
from the final agency decision ("FAD") dated March 11, 1997, concerning
her allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., and the Equal
Pay Act of 1963 ("EPA"), as amended, 29 U.S.C. �206(d) et seq. In her
complaint, appellant alleged that the agency discriminated against her
on the basis of her sex (female) when: (1) she was not promoted to the
GM-14 level, while male colleague were promoted to GM-14 and GM-15; and
(2) she was paid a GM-13 salary while performing duties comparable to
those of male leagues paid at the GM-14 and GM-15 levels. This appeal
is accepted pursuant to the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
Whether appellant was discriminated against on the basis of her sex
when she: (1) was not promoted to the GM-14 level, while male colleagues
were promoted to GM-14 and GM-15; and (2) was paid a GM-13 salary while
performing duties comparable to those of male colleagues paid at the
GM-14 and GM-15 levels.
BACKGROUND
In February 1988, appellant began working as a GM-13 Computer
Systems Analyst and Deployment Team Leader (Eastern Area) for the
Transportation Operational Personal Property Standard Systems ("TOPS"),
Project Management Office ("PMO") of the Military Traffic Management
Command ("MTMC"), headquartered in Falls Church, Virginia. In 1990,
the Deployment Team Leader (Western Region) left her GM-14 branch
chief position, and following a reorganization, appellant assumed her
responsibilities. Appellant contends that at this point, she should
have been upgraded to a GM-14. The TOPS PMO underwent a number of other
reorganizations during period from 1990 through 1994. Throughout these
reorganizations, appellant remained a GM-13 branch chief, although
the branch titles and responsibilities changed. In several of the
reorganizations, appellant assumed duties previously performed by GM-14
branch chief's.
As of April 1991, TOPS PMO organized into four co-equal branches. Two
of these branches were headed by GM-14 chiefs (both male) and the other
two by GM-13 chiefs (both female, including appellant). Appellant's
branch was the only one of the four to have a sub-branch assigned to
it. The record reflects that appellant had numerous conversations with
her supervisors about her desire for a position upgrade. Throughout
this period, appellant's performance appraisals were consistently at
the Outstanding or Excellent level. Appellant stated that management
continued to assure her that action was being taken to upgrade her
position and that of the other female branch chief in TOPS PMO.
In January 1993, the Deputy Project Manager prepared a description of
appellant's branch chief position and classified the position at the GM-14
level. The new position description was submitted to the personnel office
with a request for an accretion of duties promotion. The revised position
description was later classified by the civilian personnel office at the
GM-14 level. However, in February 1994, appellant was informed that her
accretion of duties promotion request
would not be approved because of the agency's high-grade cap. The agency
indicated that this referred to the fact that the aggregate number of
GM-14/15 positions in the MTMC was limited to 103. Management maintained
that this restriction impacted its ability to upgrade appellant's
position to the GM-14 level. Appellant countered that, in March 1994,
management converted the position of TOPS PMO program manager, to a GM-15
civilian position and filled the position with the Deputy Project Manager,
who rose from the GM-14 to the GM-15 level. However, in July 1994, a
request to upgrade appellant and the other female branch chief in TOPS
PMO was denied. In December 1994, appellant retired from the agency,
still a GM-13.
Despite the high-grade cap, appellant contended that during this period
the agency recruited and promoted men within TOPS PMO to the GM-14/15
level while at the same time failing to promote her. Appellant noted
that in February 1994, the agency selected a male employee to fill a
previously vacant GM-14 position and that the Deputy Project Manager
rose from the GM-14 to the GM-15 level. Agency personnel officials
also testified that an accretion of duties promotion was a permissible
exception to the high-grade cap.
On September 23, 1994, appellant filed her instant EEO complaint. After
the agency accepted and investigated the complaint, appellant requested
a hearing before an EEOC administrative judge ("AJ"). On January 27,
1997, following a hearing at which eleven (11) witnesses testified,
the AJ concluded that the evidence supported a finding of unlawful sex
discrimination. In reaching this conclusion, the AJ found that appellant
received less pay than male branch chiefs for equal work, requiring equal
skill, effort and responsibility, under similar working conditions in
TOPS PMO.
Moreover, the AJ concluded that the agency failed to show that the pay
difference was justified under an exception to the EPA. In addition,
the AJ found that the agency's explanation for its failure to upgrade
appellant's position--the high-grade cap limitations--was a pretext
for discrimination on the basis that the evidence established that the
agency's practice of granting exceptions to the cap was not applied in
a gender-neutral manner since two male comparators were
promoted during the same time period that appellant was denied her
upgrade. Based on this evidence, the AJ concluded that the agency
had violated both Title VII and the EPA;<1> and, that appellant was
entitled to full relief, including a determination on her claim for
compensatory damages.
On March 11, 1997, the agency issued its FAD which rejected the AJ's
finding of discrimination for the reasons discussed below. Appellant
timely appealed, and both parties have filed briefs.
ANALYSIS AND FINDINGS
The EPA was enacted to remedy the problem of sex-based wage
discrimination. 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." 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 U.S. 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 gender
for equal work, requiring equal skill, effort and responsibility, under
similar working conditions within the same establishment. Id. at 195;
Arnold v. Department of the Treasury, EEOC Appeal No. 01960490 (July
28, 1998). See also 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 the four affirmative defenses
set fourth 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 an incentive or piecework system);
or (4) a differential based on any other factor other than sex. 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." Corning
Glass Works 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 factors of skill, effort and responsibility
used to measure the equality of jobs are not precisely definable. 29
C.F.R. �1620.14(a). Skill includes such things as "experience, training,
education, and ability." 29 C.F.R. �1620.15. Effort addresses "the amount
of physical or mental
exertion required to perform the job." 29 C.F.R. �1620.17. However, 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). Although insubstantial or minor differences do not
render the equal pay standard to inapplicable, "substantial differences,
such as those customarily associated with differences in wage levels when
the jobs are preformed by persons of one sex only, will demonstrate an
inequality as between the jobs justifying differences in pay." Id.
An analysis of comparative skills and responsibilities is most problematic
when it involves executive or professional employees. 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. 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." 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. 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." The
difficulty appellant experiences in handling more complex matters,
and the increased supervision she received, is relevant, therefore,
to a determination of whether her job was substantially equal to the
work of the male comparisons."
In light of these principles, and after a careful analysis of the record
in its entirety, including the arguments on appeal, the Commission finds
that appellant established a violation of the EPA. The agency contends
that appellant did not establish a prima facie case of sex discrimination
under the EPA because she failed to establish that she received less
pay than an individual of the opposite gender for performing equal work,
requiring equal skill, effort and responsibility, under similar
working conditions within the same establishment. The agency concedes only
that appellant performed a variety of duties throughout the 1990 - 1994
period, that due to reorganizations in the TOPS PMO, she inherited some
duties previously performed by GM-14 branch chiefs, and that appellant
and the male GM-14 branch chiefs manage their respective branches within
TOPS. However, the agency asserts that "the position each [branch chief]
occupied was unique, and therefore, not substantially equal." Since
each branch has a "different area of endeavor," the agency argues that
there were no "common core" of duties, and that appellant's duties
and responsibilities "were not like any former or current TOPS Branch
Chief." The agency further asserts that "because appellant's position had
not been approved as a GM-14, [the Project Manager and the Deputy Project
Manager] were regularly involved in the appellant's day to day operation
of" the branch. In this regard, the agency disputes appellant's contention
that the position description prepared in January 1993 and submitted to
the personnel office with a request for an accretion of duties promotion
accurately described the duties she performed. The agency concedes only
that this position description "accurately described the duties that [the
Project Manager] intended her to perform if the 14 level was approved by
the Civilian Personnel Action Center." (Emphasis added.) However, because
the position description was not approved and appellant remained at the
GM-13 level, the agency contends that she merely continued to perform
"duties identical to the ones she was performing as a team leader"
and that she was not held fully accountable for performance of test and
evaluation, day-to-day tracking, aspects of configuration management,
control decisions or otherwise given higher level of authority. The agency
argues that appellant's performance evaluations "accurately reflected
her duties [and state her] grade level as GM-13; thus, ... her rating
standards accurately reflected the GM-13 duties she performed."
In response, appellant argues, among other matters, that the Project
Manager's absence on a temporary assignment from January through
June 1994, demonstrates the falsity of the agency's assertions that
she required his involvement on a day-to-day basis. In this regard,
we note that appellant's performance evaluations, which rated her
performance as "Exceptional" stated that she "independently establishes
her priorities and performs all aspects of her position as the Chief
..., completes necessary actions within the established milestones
regardless of the complexity of task, ... Her expert planning [and]
coordination ... assured a fully integrated operation... She also provides
timely and accurate status to the Project Manager weekly without being
requested... [She] was directly responsible for the 27 TOPS sites and 28
technology insertion sites which became operational during this rating
period." Another evaluation noted that appellant "was directly responsible
for training the five new employees ..., manag[ed] her staff [and] kept
the Project Manager informed of issues..., is directly responsible for
64 TOPS sites that became operational... [and for] managing TDY trips."
Moreover, the AJ reviewed the testimony of management witnesses who
denied that appellant performed at the GM-14 grade level because she
allegedly did not have the decisional authority and managerial autonomy
accorded the male GM-14 branch chiefs, to be lacking in credibility
and inconsistent with other evidence of record. The agency contends
that the AJ erred in finding the Project Manager's testimony at the
hearing lacked credence because it differed from his earlier deposition
testimony and because of his "jocular" manner on the stand. The agency
notes that when the Project Manager was confronted with the discrepancies,
he complained that appellant's attorney "kind of maneuvered me into" his
prior admissions. The agency therefore reasons that the Project Manager's
"deposition testimony, which ... he was 'maneuvered' into providing,
is not more persuasive than the majority of his sworn testimony
[and his] 'jocular demeanor' [at the hearing] is not dispositive of
the issue of the grade level of [appellant's] performance." However,
the credibility determinations of the AJ are entitled to deference due
to the AJ's first-hand knowledge, through personal observation, of the
demeanor and conduct of the witnesses at the hearing. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). Moreover, after review of the record, the Commission finds
adequate support for the AJ's credibility findings in this matter.
We note again that the requirement of "equal work" does not mean that
the jobs must be identical, but only that they must be "substantially
equal," and that the factors of skill, effort and responsibility used
to measure the equality of jobs are not precisely definable. After a
careful review of the record, we find that the AJ properly determined
that while there were differences among the four branch chief positions,
and differences between appellant's position and the position occupied
by her predecessor, these differences were insubstantial and minor
in nature and were insufficient to render the equal pay standard
inapplicable. See, e.g., Simkins Finucan, supra (the focus is not on
job descriptions or titles, but on job requirements and performance);
EEOC Enforcement Guidance on Sex Discrimination in the Compensation of
Sports Coaches in Educational Institutions, 915.002 (October 29, 1997)
(The positions of sports coach may be "substantially equal" for purposes
of the EPA even if different sports are involved and coaches of different
sports may be appropriate comparators).
The agency next argues that even if appellant established a prima facie
case of discrimination under the EPA, the wage differential was based
on a factor other than sex. As noted above, after a prima facie case
of discrimination under the EPA is established an employer may avoid
liability if it can prove that the pay difference is justified under
one of the four affirmative defenses set forth in the EPA, namely a
seniority system, a merit system, a system based on quantity or quality
of production, or a differential based on any other factor other than
sex. 29 U.S.C. �206(d)(1). The agency asserts that appellant was paid as
a GM-13 in accordance with a bona fide classification system. Since her
approved grade of record was a GM-13, she could not be paid at the GM-14
level unless and until a GM-14 position description had been approved
and implemented by the Civilian Personnel Office. The agency notes that
the Federal Personnel Manual 511-25, Subchapter 7, Effective Dates of
Position Classification Actions, citing the Comptroller General Decision,
B-180144, September 1974, provides that:
... a personnel action may not be made effective retroactively so as to
increase the right of an employee to compensation... [E]mployees of the
Federal Government are entitled only to the salaries of the positions
to which they are actually appointed regardless of the duties they
perform. When an employee performs duties at a grade level higher than
that in which his position is classified and is successful in obtaining
reclassification of his/her position and promotion, no entitlement exists
for compensation at the higher grade level prior to the date the necessary
administrative actions are taken to effect the promotion.
Accordingly, the agency reasons that it could not pay appellant at the
GM-14 level because its Civilian Personnel Office failed to complete the
necessary administrative actions. The agency cites various examples of
male employees who assumed positions formerly occupied by higher graded
GM or SES employees, but who were not paid at the higher grades for
performing such higher level duties. Consequently, the agency asserts
that appellant's level of pay was due to a differential based on a factor
other than sex.
The Commission finds this reasoning faulty. The agency cannot claim
that the failure of its own Civilian Personnel Office to approve
the reclassification of appellant's position excuses the agency's
violation of the EPA. Insofar as the agency contends that the Federal
Personnel Manual and the Comptroller General Decision prohibit the award
of remedial relief in this matter, the Commission notes that when a
court or the Commission has determined that the EPA has been violated
by a discrepancy in pay, the individual is entitled to back pay at the
higher level. See Wewers v. General Services Administration, EEOC Appeal
No. 01880297 (May 9, 1988) (Even if the more highly paid comparator
males were being over-compensated at the GS-12 level, complainant was
nonetheless entitled to back pay at the GS-12 level, because of the
agency's failure to correct the discrimination discrepancy in pay). See
also Cayce v. Adams, 439 F. Supp. 606 (D.D.C. 1977).
We next note that claims of wage discrimination based on sex can be
brought under the EPA or can be pursued directly under Title VII. The
claims are not mutually exclusive and both avenues of relief can be
pursued simultaneously. See 29 C.F.R. �1620.27. Insofar as the agency
violated Title VII in countenancing the disparity in wages between
appellant and the male branch chiefs, we note that an individual may
recover under both the EPA and Title VII for the same period of time so
long as the same individual does not receive duplicate relief for the
same wrong. Relief is computed to be the highest benefit either statute
would provide. Pursuant to the provisions of 29 U.S.C. �206(d)(1), an
employer who violates the EPA "shall be liable to the employee ... in
the amount of [her] unpaid minimum wages ... and in an additional equal
amount as liquidated damages." Under 29 U.S.C. �260, "if the employer
shows to the satisfaction of the court that the act or omission giving
rise to such action was in good faith and that he had reasonable
grounds for
believing that his act or omission was not a violation... the court
may, in its sound discretion, award no liquidated damages or award any
amount thereof not to exceed the amount specified in section 216." Here,
the AJ found that the agency's violation of the EPA was willful, noting
that appellant had discussed the disparity in pay with high level agency
officials since assuming the branch chief position and that the agency
took ineffectual actions to address her concerns. Consequently, the AJ
concluded that the agency's EPA violation was willful and, therefore,
that an award of liquidated damages was appropriate. Miller v. Department
of the Navy, EEOC Appeal No. 01943457 (December 8, 1995). The Commission
finds that the AJ did not abuse his discretion in awarding the full
amount permitted as liquidated damages.
Accordingly, appellant is entitled to an award of liquidated damages in
the amount of the difference between the GM-13 salary she received and
the GM-14 salary she should have received, retroactive to September 23,
1992 (two years prior to the date on which the complaint in this matter
was filed) and terminating on the date of appellant's retirement from
the agency (sometime in December 1994). While appellant sought $300,000
in compensatory damages under her Title VII claim, the Commission is
not persuaded that appellant offered any evidence of compensatory
damages exceeding the amount awarded as liquidated damages.
We now turn to appellant's allegation that the agency violated Title
VII when she was not promoted to the GM-14 level, while male colleagues
were promoted to the GM-14 and GM-15 level's. Inasmuch as appellant
established that she requested and was denied a promotion to the GM-14
level based on her accretion of duties, the Commission finds that
she established a prima facie case of discrimination by presenting
enough evidence to raise an inference of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Accordingly, the burden of
production shifts to the agency produce evidence sufficient "to allow
the trier of fact rationally to conclude" that the agency's action was
not based on unlawful discrimination. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 257 (1981). Once the agency has articulated
such a reason, the question becomes whether the proffered explanation
was the true reason for the agency's action, or merely a pretext for
discrimination. Although the burden of production, i.e., "going forward,"
may shift, the burden of persuasion, by a preponderance of the evidence,
remains at all times on the complainant. and it is her obligation to show
by a preponderance of the evidence that the agency acted on the basis
of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993) (citing United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 716 (1983).
Here, the agency maintained that it did not promote appellant to the GM-14
level because of the constraints imposed by the agency's high-grade cap
(discussed extensively in the record) which limited the aggregate number
of GM-14/15 positions in the MTMC to 103. Appellant contended that this
articulated legitimate reason was pretextual because the Deputy Project
Manager was promoted to the GM-15 level, because one male employee
received a competitive promotion to a GM-14 position, and because a
promotion based on an accretion of duties would be an exception to the
high-grade cap limitation.
After a careful review of the evidence, the Commission is not persuaded
that appellant established pretext. While the record establishes that the
Deputy Project Manager was promoted to the GM-15 level, his promotion from
the GM-14 to the GM-15 level had no effect on the agency's high-grade
cap which limited the aggregate number of GM-14/15 positions in the
MTMC to 103. While one male employee received a promotion to a GM-14
position, we note that his promotion was effected through the competitive
process, and was not based on an accretion of duties. Appellant failed to
demonstrate that any employee received a promotion to a GM-14 position
based on an accretion of duties. Accordingly, even if an exception to
the high-grade cap was permitted so long as the promotion was based
on an accretion of duties (an assertion which the agency disputes),
we find that the mere existence of such an exception is insufficient to
establish pretext inasmuch as there is no evidence that the agency ever
granted such an exception.
Therefore, we affirm the FAD insofar as it found that appellant failed
to establish discrimination with respect to this claim.
CONCLUSION
For the reasons set forth above, it is the decision of the Commission to
REVERSE the FAD insofar as it rejected the AJ's finding that it violated
the EPA when it paid appellant a GM-13 salary for equal work, requiring
equal skill, effort and responsibility, performed by male colleagues
paid at the GM-14 level. In order to remedy appellant for the its
discriminatory actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award appellant back pay, with interest,
for the difference between the GM-13 salary she received and the GM-14
salary she should have received, retroactive to September 23, 1992
(two years prior to the date on which the complaint in this matter
was filed) and terminating on the date of appellant's retirement from
the agency. The agency shall determine the appropriate amount of back
pay, interest and other benefits due appellant, pursuant to 29 C.F.R. �
1614.501. The appellant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue
a check to the appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The appellant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
(B) Within sixty days of the date this decision becomes final the agency
shall award appellant liquidated damages totaling an amount equal to
back pay and benefits, with interest.
(C) The agency shall post at the headquarters of the Military Traffic
Management Command copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty
(60) consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The
agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
(D) The agency shall provide training to relevant managerial officials
in the obligations and responsibilities under Title VII and EPA.
(E) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501(e) (1) (iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. �1614.501(e). The award of attorney's fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency - not to the Equal Employment Opportunity Commission, Office of
Federal Operations - within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S
DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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
29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively, the
appellant 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. ��1614.408 and 1614.409. 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 appellant files
a civil action, the administrative processing of the complaint, including
any petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party WITHIN
TWENTY (20) CALENDAR DAYS of the date you receive the request to
reconsider. See 29 C.F.R. �1614.407. All requests and arguments must
bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider request for
reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a
civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you to
file the action without payment of fees, costs, or other security. See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791,
794(c). The grant or denial of the request is within the sole discretion
of the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File a Civil Action").
FOR THE
COMMISSION:
November 2, 1999
____________________________________
DATE Frances M. Hart
Executive Officer
Executive
Secretariat
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ______________ which found that
a violation of the Equal Pay Act of 1963, as amended, 29 U.S.C. �206(d),
has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Military Traffic Management Command (MTMC) supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The MTMC has been found to have discriminated against the individual
affected by the Commission's finding on the bases of her gender
by failing to compensate her at the same level as male colleagues
who were performing equal work, requiring equal skill, effort and
responsibility. The Commission has ordered that this individual receive
appropriate back pay, with interest, and an award of liquidated damages
in an equal amount. The MTMC will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The MTMC will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
_______________________
Date Posted: _____________________________
Posting Expires: _________________________
1 Where, as here, the jurisdictional prerequisites of both the EPA and
Title VII are satisfied, any violation of the EPA is also a violation
of the Title VII. 29 C.F.R. �1620.27(a).