Candace C.,1 Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Apr 29, 2016

0120151046 (E.E.O.C. Apr. 29, 2016)

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

Candace C.,1
Complainant,

v.

Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120151046

Hearing No. 520-2015-00013X

Agency No. GSA-14-R2-Q-0023

DECISION

On January 12, 2015, Complainant filed an appeal from the Agency’s December 16, 2014,
final order 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. and the Equal Pay Act of 1963 (EPA), as amended, 29
U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Student Trainee, GS-05,
in the Agency’s Federal Acquisition Service (FAS) Transportation Department and Supply
Operations Branch located in New York, New York. Complainant was first appointed as a
Student Trainee (Supply) effective March 26, 2012. Complainant was terminated from her
position effective January 29, 2014.

On April 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her. The Agency defined Complainant’s complaint as alleging:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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1. Complainant was subjected to discrimination on the bases of race (Pacific Islander),
color (non-white), and national origin (Filipino) when on December 12, 2013,
Complainant was notified that the Agency was not going to convert her to a term or
permanent employee and she would be terminated effective January 28, 2014.

2. Complainant was subjected to discrimination based on sex (female) when she
performed duties equivalent to a GS-11 and GS-12 from October 2012 to December
2013, while Complainant was employed at the Agency as an intern.

3. Complainant was subjected to discrimination based on disability and in reprisal for
prior EEO activity when on December 24, 2013, Complainant was accused by her
supervisor of cursing in an electronic mail message Complainant wrote to him
explaining the duties she performs in the branch.

4. On January 14, 2014, Complainant learned Agency Counsel submitted an exception
request, on behalf of management, not to participate in mediation regarding her
claims.

On February 13, 2014, the Agency accepted claims (1) and (2) for further processing. The
Agency dismissed claim (3) for failure to state a claim. In addition, the Agency dismissed
claim (4) for mootness. The Agency noted that mediation concerning all of Complainant’s
EEO claims was held on February 3, 2014.

At the conclusion of the investigation on the accepted claims, 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 timely requested a hearing.

The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant's objections, issued a decision without a hearing on December 8, 2014.
At the outset, the AJ addressed the Agency’s dismissal of claims (3) and (4). The AJ
determined the Agency properly dismissed claim (3) for failure to state a claim. The AJ stated
that with regard to claim (3), Complainant alleged she was accused of doing something
negative, namely cursing in an electronic mail message. The AJ found this allegation failed to
state a claim. In addition, the AJ found the Agency properly dismissed claim (4) relating to
Agency counsel’s request to not have management participate in mediation. The AJ noted the
Agency dismissed this claim as moot, since mediation was held on February 3, 2014. The AJ
stated an Agency’s decision not to engage in Alternative Dispute Resolution (ADR) may not be
the subject of an EEO complaint.

The AJ noted that Complainant was terminated from her position as a Student Trainee (Supply)
effective January 29, 2014. The AJ stated because Complainant did not receive a positive
recommendation, she was not hired as a full-time employee. The AJ noted that concerns
regarding Complainant’s conduct while she was an intern trainee were well documented.

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Specifically, the AJ cited concerns identified in Complainant’s performance plan and appraisal
for rating period October 1, 2012, through September 30, 2013, and numerous memos from
different people all addressing concerns about Complainant. The AJ noted that nine interns
were hired as full-time employees at the completion of their internship program. The AJ noted
that four of those interns were white and five were non-white. The AJ stated there was no
evidence that any of them had any issues with their conduct.

The AJ noted Complainant also claimed that the Agency violated the EPA when she allegedly
performed duties equivalent to a GS-11 and GS-12 from October 2012 to December 2013,
while employed as an intern. Specifically, the AJ noted that Complainant contended that from
October 2012 through February 2013, she performed “Air Clearances, G3’s for pending
orders, and made spreadsheets for [her] former branch manager.” The AJ noted that
Complainant also added that “Since February 2013, I have done Sea Vans and still did
spreadsheets and helped out with Air Clearances.” The AJ noted that Complainant claimed
that she did this type of work, while her female Branch Manager (S1) and S2 [male, Supply
Chain Management Branch Chief] did not know how to do this work.

The AJ noted that Complainant contended that she did work that both a male and female
employee at higher grade levels (S1 and S2) could not do. The AJ also stated Complainant’s
evidence was confusing because although she was trying to argue sex discrimination, she also
pointed to a female comparative who was apparently paid more than Complainant but allegedly
was doing the same level of work as Complainant. The AJ stated Complainant’s true argument
appeared to be that she should not have been fired, because, in her opinion, she was doing
work that her superiors were incapable of doing. The AJ found Complainant’s argument
missed the larger point that she was terminated largely due to her conduct and inability to work
in a team setting.

The Agency subsequently issued a final order on December 16, 2014. The Agency’s final
order fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

On appeal, Complainant challenges the AJ’s dismissal of two of her claims. With regard to
claim (3), Complainant states she never wrote an electronic mail message to S2. Rather,
Complainant states S2 falsely accused her of cursing, which she claims is harassment.
Additionally, with regard to claim (4), Complainant states that the Agency did not want to
resolve this matter in good faith as evidenced by management not wanting to participate in
mediation.

Complainant also contested the Agency’s finding of no discrimination with regard to claims (1)
and (2). With regard to claim (1), Complainant avers she was terminated without a valid
reason. Complainant states she received successful mid-year and final ratings from S2 and
claims there was no reason to fire her. With regard to the concerns regarding her conduct,
Complainant states that the Former Center Director, ordered S2, S1, Person A, and Person B
to write language strong enough to remove her from government service. Complainant alleges

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the Former Center Director and S2 were friends and that the Former Center Director knew
that S2 did not like her and sided with S2. Complainant also points out that S2 was not even
her supervisor at the time, but she states that S1 was her supervisor. Finally, Complainant
alleges she did not receive proper training, while the other student trainees in Contracting and
Engineering were given proper training and all nine were eventually converted into federal
employment.

With regard to claim (2), Complainant claims the Agency violated the EPA. Complainant
alleges the EPA was violated when she performed GS-11 work from October 2012 to
December 2013, by doing Air Clearances. Complainant also states the EPA was violated
when she performed GS-12 work from February 2013 to January 2014, including Sea Vans.
She states that S2 and S1 delegated the duty of Sea Vans, a GS-12 job to her at the beginning
of February 2013. Complainant states that for the last 10 years, all male Agency employees,
including Comparative X and Comparative Y earned salaries equivalent to a GS-12 while
performing Sea Vans. In contrast, Complainant states she was a student on a GS-05 pay grade
doing such work. In addition, Complainant states the Agency violated the Pathways Student
contract because Sea Vans was not indicated on the contract as a student duty.

Complainant claims that S1 and S2 were supposed to know how to do Sea Vans but they did
not. Complainant states that S1 and S2 tried to conceal their incompetence by passing the Sea
Vans and training duties to their subordinates, Person A and Person B. Complainant alleges
that Person A and Person B were upset because they knew it was the Acting Branch Chief’s
job to do this duty, and they did not want to train Complainant on this duty. Complainant
states she has more education than S1 and S2. Complainant states S1 and S2 became more
hostile to her after she received her Master’s Degree. Complainant notes she finally learned
Sea Vans on her own after seeking help from another colleague who knew Sea Vans.

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 EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), at Chap. 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”).

At the outset, we note that Complainant challenges the Agency’s dismissal of claims (3) and
(4) of her complaint. With regard to claim (3), Complainant states she did not write the
subject electronic mail message to S2. Rather, Complainant claims that S2 falsely accused her
of cursing. A review of the record reveals that on November 26, 2013, after receiving her
rating, Complainant sent S2 an electronic mail indicating she did not agree with the comments

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in her rating. Thereafter, on December 24, 2013, S2 sent an electronic mail message stating,
in part, that “Your team witnessed you making disparaging remarks about your supervisor and
management to the people in your branch and sometimes outside the branch on several
occasions. Your team also heard you belittling others and questioning the capability of your
supervisor. They even heard you cursing and screaming while talking on the phone which was
disruptive to the section.” Upon review, we find that claim (3) by itself does not state a claim.
However, we find that claim (3) should be considered as part of claim (1) concerning
Complainant’s non-conversion. Thus, we will consider this claim below in our analysis of
claim (1).

Additionally, we find claim (4) was properly dismissed. Agencies have discretion to determine
whether a dispute is appropriate for ADR such as mediation, and an agency’s decision not to
engage in ADR may not be the subject of an EEO complaint. See EEO MD-110 at Chap. 3,
§III.H (August 5, 2015).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact.

We first address Complainant’s claim that she was subjected to discrimination when on
December 12, 2013, she was notified that the Agency was not going to convert her to a term
or permanent employee and she would be terminated effective January 28, 2014. Despite
Complainant’s contention that the Agency did not present a reason for its actions, we find the
Agency articulated legitimate, nondiscriminatory reasons for its decision not to convert
Complainant. Specifically, the Agency noted that a favorable recommendation from a
supervisor was a prerequisite to conversion. The Agency explained that Complainant did not
receive a favorable recommendation from her supervisor due to her performance and her
attitude. In his affidavit, S2 stated Complainant was given adequate training in the Sea Vans
process; however, she was unable to master the task to the necessary level. S2 noted that
Complainant also repeatedly disagreed with the processes and procedures in place to process
Sea Vans. In addition, S2 stated that the Supply Operation and Transportation Team witnessed
Complainant make disparaging remarks about her supervisor and management to people in her
branch and sometimes outside the branch.

The record also contained an affidavit from Person C who became the Center Director on
September 1, 2013. The Center Director stated that Complainant was not converted since she
did not collaborate well with others on her team, did not take well to directions and
assignments from her supervisor, and sometimes jumped the chain of command. Further, the
record reveals the concerns regarding Complainant’s conduct while she was an intern trainee
were also documented in Complainant’s performance plan as well as in numerous Memoranda
from S2, S1, Person A and Person B, both of whom trained Complainant during the relevant
time frame.

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In addition, we note that there is no evidence to support Complainant’s contention that the
Former Center Director discriminated against her by ordering S2, S1, Person A, and Person B
to write language strong enough to remove her from government service. We acknowledge the
record does contain a July 2, 2013 electronic mail message from the Former Director
requesting S2 to obtain detailed statements from Person A, Person B, and S2 explaining
Complainant’s attitude and how “she plays like she does not know and the way that she does
not cooperate with the team.” However, we also note that in his affidavit, the Former Director
stated that he was in Complainant’s supervisory chain of command when she first entered the
intern program. He noted that he had spoken to Complainant on numerous occasions in
reference to her work performance and negative attitude towards her team peers. The Former
Director stated that every time Complainant was told to do a job that she did not want to do,
she went to the Deputy Director to complain about the work and how she did not want to do it.
The Former Director stated that he was concerned with Complainant’s abilities and her
interactions with others at work. We find Complainant has not shown that the July 2, 2013
electronic mail was anything other than an attempt by management to document their concerns
about Complainant’s performance and attitude. Additionally, we note Complainant failed to
produce any evidence that her training was inadequate. We note Complainant has not shown
that any other interns who were converted suffered from conduct or performance issues. Upon
review, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions
which Complainant failed to show were a pretext for discrimination. Moreover, we find
Complainant failed to show she was subjected to discriminatory or retaliatory harassment with
regard to the Agency’s actions.

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

All forms of pay are covered by the EPA, including salary, overtime pay, bonuses, stock
options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or
gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.
See EEOC Compliance Manual, Section 10: Compensation Discrimination (Dec. 5, 2000); 29
C.F.R. § 1620.10.

Once a complainant has met the burden of establishing a prima facie case, 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. We note that the EPA is limited to certain sex-based differentials in wages. The EPA does

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not prohibit discrimination in other aspects of employment, even those that have compensation-
related consequences, such as hiring, firing, promotion, transfer, or other issues. Wiley v.
Department of the Treasury, EEOC Appeal No. 01972118 (June 27, 2001) (citing
Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130 (7th Cir. 1989) (a claim of
discriminatory promotions is beyond the scope of the EPA but actionable under Title VII)).

In the present case, Complainant alleges the EPA was violated when she performed GS-11
work from October 2012 to December 2013, by doing Air Clearances. Complainant also
states the EPA was violated when she performed GS-12 work from February 2013 to January
2014, including Sea Vans. She states that S1 and S2 delegated the duty of Sea Vans, a GS-12
job to her at the beginning of February 2013. Complainant alleges that despite Sea Vans being
part of S1 and S2’s job requirements, neither of them knew how to do Sea Vans work.

We note that in her affidavit, when asked to identify any other interns who performed GS-11
and GS-12 duties, Complainant identified Person B. Complainant stated that Person B was
also an intern in the Transportation Department who did Air Clearances, Sea Vans, and G3s.
Complainant states she did not know Person B’s grade. Complainant also states that for the
last 10 years, all male Agency employees, including Comparative X and Comparative Y
earned salaries equivalent to a GS-12 while performing Sea Vans. In contrast, Complainant
states she was on a GS-05 pay grade doing such work.

In the present case, we note that to the extent Complainant is attempting to establish a prima
facie EPA violation by comparing herself to S1 and S2, she has not established that she
received less pay than an individual of the opposite sex for equal work, requiring equal skill,
effort, and responsibility, under similar working conditions. Specifically, we note that S1 was
the same sex as Complainant. In addition, we note that S2 was a GS-14 Supply Chain
Management Branch Chief.

Complainant also claims that Comparative X and Comparative Y earned salaries equivalent to
a GS-12 while performing Sea Vans. In contrast, Complainant states she was a student on a
GS-05 pay grade doing such work. We find the record shows that as a student intern
Complainant was not assigned one specific set of job duties, but rather she was moved around
to learn the organization’s different functions. In the present case, we find Comparative X and
Comparative Y were not appropriate comparatives as they were not GS-05 student trainees as
Complainant. S2 stated in his affidavit that Comparative X was not an intern. In addition, S2
stated that Comparative Y retired before S2 joined the Agency in August 2011. The record
contains an SF-50 for Comparative Y showing that he retired on April 1, 2011, as a GS-11
Supply Management Specialist. The record contains an SF-50 showing Comparative Y retired
as a GS-09 General Supply Specialist on May 31, 2013.

In addition, Complainant states that Person B did the same Air Clearances, Sea Vans, and G3s
work that she did. The record reveals that Person B was an intern trainee during the relevant
time frame. We note the record contains a SF-50 showing that effective April 7, 2013, Person
B was converted from a GS-5 Student Trainee (Supply) to a GS-9 Supply Management

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Specialist in FAS. To the extent Complainant is alleging that Person B was a comparative, we
note that Person B is a female and thus, not an appropriate comparative. In addition, we note
that in her affidavit S1 states that Person B was an intern who was required to do Air
Clearances, G3’s, and pending orders; however, she was not paid at the GS-11 or GS-12 level.

Additionally, assuming arguendo Complainant has established a prima facie case of a violation
under the EPA, we find that the Agency has shown the difference in pay was justified based on
a factor other than sex. The record shows that as an intern Complainant was not assigned one
specific set of job duties, but she was moved around to learn the organization’s different
functions. We find the record shows that any pay difference is justified under a differential
based on a factor other than sex - it was based on participation in the Student Intern Program.

CONCLUSION

Accordingly, the Agency’s decision dismissing claim (4) and finding no discrimination with
regard to claims (1), (2), and (3) is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
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. The requests 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 request or opposition must also include proof of service on the other
party.

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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.

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 29, 2016
Date