0120051127
02-27-2007
Cindy B. Waller, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Cindy B. Waller,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120051127
Hearing No. 210-2003-6111X
Agency No. 4-02-4090
DECISION1
INTRODUCTION
On November 3, 2004, complainant filed an appeal from the agency's October
1, 2004, 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. The appeal is deemed timely and is decided pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
complainant on the bases of race (African-American), sex (female), and
in reprisal for prior EEO activity (complaints filed in February 1996
and August 2000) when:
(1) on a continuous basis she was denied equal pay from March 30,
2000 to the present;
(2) she was denied a temporary detail and not selected for a temporary
noncompetitive position and an announced competitive temporary position
as a Management and Program Analyst on or about November 2001; and
(3) she was given a desk audit and subjected to a hostile work
environment when she was assigned to a supervisor (S-1), who had
previously supervised her work.
BACKGROUND
During the relevant time, complainant worked as Personnel Management
Specialist (PMS), GS-201-11(G), at the agency's Chicago Air Route Traffic
Control Center in Chicago, Illinois. The agency permanently promoted her
to said position on January 17, 1999. From approximately November 1996
through January 2000, prior to receiving her PMS position, complainant was
supervised by S-1, the Support Manager-Resource Manager.2 Thereafter,
two managers supervised complainant intermittently from January 2000
through July 2000. In July 2000, one of the two identified mangers
(S-2) became complainant's permanent supervisor from July 2000 through
December 30, 2001. On January 7, 2002, S-1 again was assigned to
supervise complainant.
The record reveals that, in March 2000, the work in the Personnel Office
was divided such that each employee was assigned to a particular area.
Complainant was responsible for Human Resources work; a coworker
(CW-1), Management and Program Analyst, GS-12, was responsible for
Human Resources and Special Projects; and another coworker (CW-2),
PMS, GS-12, was responsible for Labor Relations and Human Resources.
Complainant believed that she performed work at the GS-12 position and
identified CW-1 and CW-2 as her comparators.
With respect to CW-1, the record reflects that he worked as a Supervisory
PMS, GS-12, until November 1996 when a national reorganization eliminated
and streamlined supervisory positions. Due to agency policy, CW-1 became
a saved-grade, saved-pay PMS, GS-12, and he performed a combination
of personnel functions and non-personnel related special assignments.
In June 1999, the agency reassigned CW-1 to the position of Management
and Program Analyst, GS-12. His duties included Human Resources and
Special Projects duties. As part of his Special Projects duties,
CW-1 developed a conduct and discipline manual for use within Human
Resources and for management; conducted training session on the conduct
and discipline manual for supervisory personnel; developed flow charts
for the accountability board, conduct and discipline actions, and model
work environment actions; and participated in the Tiger team, which,
among other things, investigated and analyzed causes for the increase in
operational errors within the facility. As part of his Human Resources
duties, he performed investigations for EEO infractions and disciplinary
issues, among other things. Finally, under position management, he
tracked positions and personnel assigned against those positions in
the facility.
With respect to CW-2, his position received an upgrade in March of 2000.
From April 2000 until November 2001, his primary responsibilities
consisted of Labor Relations duties and EEO functions. CW-2 estimated
that approximately 75-80% of his time involved Labor Relations. In
this regard, the record reflects that he served as the Air Traffic
Manager's principal advisor on Labor Relations matters. As such,
he attended meetings with unions; interacted with managers regarding
a range of Labor Relations issues, grievances, and other complaint
issues that are raised by the unions; and negotiated with the unions.
With respect to his EEO functions, CW-2 investigated EEO complaints from
management's perspective, and independently decided who to investigate,
how to perform the investigation, and what questions to ask.
In May or June of 2001, complainant met with the Air Traffic Division
Manager (Manager) to discuss her desire to be promoted to a GS-12 level.
The Manager indicated a willingness to conduct a desk audit. Due to
various circumstances, including the events of September 11, 2001, and
a transfer of desk audit duties, the agency did not commence any action
on the audit until December 10, 2001. The agency provided complainant
with thirteen questions for the desk audit, and complainant completed
her submission on February 21 and 22, 2002. Thereafter, complainant was
informed of a hiring freeze which went into effect on January 18, 2002.
In April 2002, complainant was provided with a set of follow-up questions
regarding her desk audit, which she did not complete until September 2002.
The agency reviewed the information complainant provided and determined
the level of her work based on the types of duties performed, percentage
of time they were performed, and their regularity. On November 15, 2002,
the Manager, Human Resources Services, issued her recommendation that
complainant's position remain a Career Level 2, Pay Band G, that is,
a GS-11.
The record further reveals that, in October 2001, CW-1 was activated
as a reservist and required to participate in military duty. Although
management discussed temporarily promoting complainant to CW-1's position,
the decision was made that complainant's desk audit should be completed
before temporarily promoting her. CW-1's Human Resources duties were
divided between three employees, including complainant, CW-2, and a third
coworker (CW-3). CW-1's conduct and discipline duties were performed
by complainant and CW-2 on an alternating basis. Neither complainant
nor CW-2 received CW-1's Special Project duties. Instead, CW-3 became
responsible for tracking and reporting functions, and the managers
assumed the remaining Special Projects duties as needed.
On November 7, 2001, a competitive bid was opened for a Temporary
Management and Program Analysis, 0343 FG-G or H, position.3 Complainant
and two other employees bid for the position and were considered best
qualified. However, the agency made no selection for the temporary
position.
On December 14, 2001, complainant filed an EEO complaint alleging that
she was discriminated against as stated above. At the conclusion of the
agency's investigation, complainant was provided with a copy of the report
of investigation and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing,
and the AJ held a hearing on November 5, 6, and 7, 2003.
Administrative Judge's Decision
On September 30, 2004, the AJ issued a thorough decision, finding no
discrimination. With respect to complainant's claim regarding equal
pay, the AJ found that complainant failed to establish a prima facie
case of race or sex discrimination under a disparate treatment theory
because neither CW-1, nor CW-2, was similarly situated to complainant.
AJ Decision, at 14. She noted their duties in reaching this conclusion.
The AJ further determined that complainant failed to establish a prima
facie case of reprisal in that she failed to show that S-2 was aware of
her prior EEO activity during the relevant period. Id., at 15. As to
whether complainant established a violation of the EPA, the AJ found
that complainant failed to show that she performed the same duties as
CW-1 and CW-2, or that the duties she performed required the same level
of skill and responsibility as that of her comparators. Id., at 15-17.
Moreover, the AJ noted that complainant failed to show that she performed
work at the GS-12 level after CW-1 went on military duty. Id., at 20.
Although complainant argued that labor law expertise should not be given
more weight, and that Special Projects duties were not mentioned in CW-1's
position description, the AJ found that complainant failed to prove
pretext inasmuch as grade levels increased agency-wide for individuals
performing Labor Relations functions, and the focus under the EPA is not
on position descriptions, but rather on work performed. Id., at 23-24.
As to complainant's claim that the agency discriminated against her when
it failed to promote her, the AJ first found that complainant failed
to state a claim upon which relief could be granted since no selection
was made for the position. Id., at 22. Nonetheless, the AJ went on
to determine that the agency articulated a legitimate nondiscriminatory
reason for not selecting complainant. Id. Specifically, complainant was
expected to complete her desk audit shortly, and a promotion would create
difficulty in clearly separating her usual duties from newly acquired
duties that were assigned due to the temporary promotion. Moreover, with
a limited staff, an employee would be unable to accomplish CW-1's work,
especially as related to his Special Projects duties. Id., at 22-23.
Further, despite complainant's argument that the hiring freeze should
not have prevented her temporary promotion, the AJ determined that the
agency's decision not to promote complainant focused on her completing
her desk audit and not on the hiring freeze. Id., at 24. Although
complainant argued that a written desk audit as compared to an on-site
desk audit constituted harassment, the AJ found that complainant failed
to show that the agency's decision was due to a discriminatory motive.
Id.
Considering complainant's claim that she was harassed when S-1 was
reassigned as her supervisor, the AJ found that complainant failed to
show that the act of S-1 being assigned as her supervisor, or acting
as her supervisor, rose to the level of a hostile work environment.
Id., at 20. The AJ further analyzed whether complainant's desk audit
was conducted in a discriminatory manner and concluded that it was
not. Id., at 21. She found that the agency articulated a legitimate
nondiscriminatory reason for requiring complainant to complete the audit,
namely it was performed to settle a pending EEO complaint, would provide a
"clear picture" of her responsibilities, and would determine the proper
classification of her job responsibilities. Id., at 22. The AJ noted
that, although complainant maintained that the agency conducted the
desk audit in an effort to harass her, she failed to provide evidence
and resorted to mere speculation. Id.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
Contentions on Appeal
Complainant filed the subject appeal on November 3, 2004, and requested
an extension of time to file her brief in support of appeal. On October
10, 2004, the Commission granted complainant an extension of time until
January 17, 2005. Apparently unaware that the Commission had granted
an extension, the agency filed its opposition statement to appeal on
December 30, 2004.
On January 17, 2005, complainant filed her brief in support of appeal.
Therein, she alleges, among other things, that the AJ erred in: (1)
defining the issues for hearing;4 (2) finding that she failed to prove
a prima facie case of race or sex discrimination under Title VII and the
EPA; and (3) finding that she failed to establish a claim of harassment
when she was directed to complete a desk audit, denied noncompetitive
and competitive temporary promotions, denied a detail, denied duties
previously performed by CW-1, and S-1 was assigned as her supervisor.
On February 16, 2005, the agency filed a motion to strike complainant's
late filed brief in support of her appeal, and in the alternative, a
motion for an extension of time within which to file the agency's response
to complainant's brief. The agency stated that it received complainant's
brief in support of her appeal on January 17, 2005. On March 17, 2005,
the agency filed its second brief in opposition to complainant's appeal.5
Therein, the agency addresses each of complainant's arguments.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. First, complainant asserts
that she was harmed because the AJ who prepared the written decision is
not the same AJ who conducted the hearing. We find, however, that since
the AJ who issued the decision did not make any credibility findings,
complainant cannot show how she was harmed. Complainant further asserts
that the AJ failed to properly frame the claim inasmuch as she did not
consider complainant's June 2, 2003 submission, requesting that her
complaint include a continuing violation and hostile work environment
theory. After carefully reviewing the record, we find that the AJ's
identification of the claims was appropriate.
To the extent that complainant claims that the AJ erred in finding that
she did not establish a prima facie case of discrimination with respect
to claim 1, we find that AJ correctly found that complainant was not
similarly situated to CW-1 and CW-2. In arriving at this conclusion,
we focus on the duties performed by complainant and her two comparators.
CW-1 performed Human Resource duties and worked on Special Projects;
CW-2 performed work in labor law, and the AJ specifically found that the
agency considered this higher graded work; but, in contrast, complainant
performed solely Human Resource duties. Although complainant asserts
that she performed many, if not all, of CW-1's duties when he departed for
military duty, she cannot show that she performed the same type of work
on Special Projects with same level of skill and responsibility as CW-1.
Complainant also maintains that she performed substantially similar
duties, and she makes light of CW-1's Special Projects. A review of
these Special Projects substantively, however, reflects that CW-1's work
products required a great deal of skill and responsibility which cannot
be discounted. Therefore, we find that the AJ correctly concluded that
complainant failed to establish a prima facie case of discrimination
with respect to claim 1.
With respect to complainant's claim that she established a claim of
harassment, we find that she has not established that any of the agency's
actions were motivated by discriminatory animus based upon her protected
groups. Moreover, we find that the incidents identified by complainant
were insufficiently severe or pervasive so as to rise to the level
of harassment. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
In sum, complainant has failed to present evidence that any of the
agency's actions were motivated by discriminatory animus or that a
violation of the EPA has occurred. Based upon substantial evidence in
the record, we also discern no basis to disturb the AJ's finding that
complainant failed to prove she was discriminated against based upon race,
sex, and/or in reprisal.
CONCLUSION
Accordingly, after a careful review of the record, the Commission affirms
the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____2/27/07_____________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Complainant named S-1 in her August 2000 complaint.
3 Under the agency's Pay Band system, a Level G is equivalent to a GS-11
and a Level H is equivalent to a GS-12.
4 Complainant explains that one AJ conducted the hearing, while another
AJ issued the decision. According to complainant, the AJ writing
the decision failed to make observations at the hearing and consider
outstanding matters noted in the transcript.
5 The Commission finds that complainant timely filed her January 17,
2005 brief, since she was granted an extension until the aforesaid date.
Moreover, since the agency was unaware of the Commission's grant of an
extension, we find the agency's March 17, 2005 brief timely as well.
All arguments and evidence presented by both parties, even if not
specifically addressed in this decision, have been considered.
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0120051127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120051127