0120130357
09-25-2014
Complainant v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Complainant
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120130357
Hearing No. 420-2011-00217X
Agency No. 2011045
DECISION
Complainant timely filed an appeal from the Agency's 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 Commission accepts the appeal 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 are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination based on sex and reprisal; and (3) whether Complainant established that the Agency violated the Equal Pay Act (EPA) as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked on the day shift as a Nuclear Mechanical Technician, Level III, at the Agency's Browns Ferry Nuclear Power Plant in Athens, Alabama. Report of Investigation (ROI), at 4. In September 2009, Complainant was switched from foreman's pay to Level III Technician pay due to a change in Agency policy that was intended to minimize payroll and staffing levels.1
Sometime later in February 2011, during the "pre-outage" period, Complainant's first-level supervisor (S1) sent a coworker from the night shift to assist Complainant for two weeks. Id. at 69. S1 verbally told the coworker that she (S1) was her supervisor and that another employee, not Complainant, was her foreman. Id. at 93-94. After working with Complainant for two weeks, the coworker returned to her night shift position for the "outage" period. Id. at 94-95. During the outage period, Complainant and the coworker would leave each other notes of what material needed to be picked up on the night shift. Id. at 95. Notwithstanding, management did not pay Complainant at the foreman dual-rate for the pre-outage and outage periods because she apparently was not assigned to supervise the coworker. Id. at 60.
On May 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when, on or about February 28, 2011, she learned that she was being paid less than a male coworker. At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 28, 2011, motion for a decision without a hearing and issued a decision without a hearing on September 13, 2012, in the Agency's favor. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, with regard to disparate treatment, the AJ found that Complainant failed to establish a prima facie case of discrimination based upon sex and reprisal. The AJ noted that, although Complainant identified three female coworkers as comparators, she did not identify any male coworkers who were paid more than she was under similar circumstances. The AJ found that Complainant presented no evidence from which a motive of sex and/or reprisal discrimination could be inferred. The AJ noted that Complainant did not establish that the Agency's articulated reason was pretext for discrimination. The AJ further found that Complainant did not establish a prima facie case of discrimination under the EPA. The AJ found that Complainant did not to establish that she received less pay than male coworkers for "equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment."
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency's ROI is incomplete, not objective, and biased. Complainant alleges that, although the ROI does include payroll information of male employees making a higher pay-grade, no testimony was elicited concerning their job duties. Complainant asserts that the Agency told her that she would not receive the higher pay because no employee was working under her. Complainant states that every employee who had performed her duties previously had received the higher pay, and that after she participated in protected activity, she was demoted. Complainant maintains that the ROI is lacking in testimony from coworkers about their job duties. Complainant states that she provided the Agency's investigator with the names of employees who received higher pay for performing job duties similar to hers. Complainant indicates that she supervised her coworker for both the pre-outage and outage periods, but did not receive the foreman dual-rate for that time period. Complainant asserts that she listed male employees for the investigator who received the higher pay premium without having to supervise others.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review."); see also EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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").
ANALYSIS AND FINDINGS
AJ's issuance of a Decision without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving parry's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to her opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. For the reasons discussed below, we find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
We additionally note that, on appeal, Complainant maintains that the ROI was deficient, making the record inadequate for a Decision without a Hearing. Notwithstanding, a review of the ROI does not support Complainant's contention that it was so deficient as to warrant vacating the AJ's decision and ordering a supplemental investigation. The regulation at 29 C.F.R. �1614.108(b) requires an agency to conduct an "impartial" and "appropriate" investigation. We note that the ROI includes sworn statements from Complainant, employees, and management officials, and a variety of other documentation pertaining to the matters herein. As such, we find that the record was adequately developed for a decision without a hearing.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that be was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal, the Agency articulated legitmate, nondiscriminatory reasons for its actions. Specifically, the Agency explained that S1 asked a coworker to temporarily switch to the day shift to assist Complainant for two weeks. ROI, 60-61. The Agency explained that this coworker worked with Complainant, but was not under her supervision. Id. The Agency explained that, because Complainant was not actually supervising the coworker, she was not due to receive pay for a dual-rate foreman pursuant to Agency policy. Id. This explanation meets the Agency's very light burden of production under Burdine.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant states that every employee who had performed her same duties previously had received the higher pay, and that after she participated in protected activity, she was demoted. Complainant contends that she supervised her coworker for a lengthy period, but did not receive the higher pay rate. Complainant maintains that she listed male employees who received the higher pay without having to supervise others.
Notwithstanding Complainant's assertions, we note that the coworker averred that, although she was assigned to work with Complainant during the pre-outage, she was told that another employee, not Complainant, was her foreman during that time. Id. at 94-95. The coworker further averred that, after the pre-outage period, she returned to the night shift for the outage period. Id. The coworker additionally averred that she was never told that Complainant was her supervisor for either the pre-outage or outage periods. Id. at 95-96. We additionally note that the record reflects that Complainant failed to specifically identify any male employee who received higher pay. Id. at 55. We note that Complainant only indentified female employees who reportedly were receiving foreman's pay for the same duties. Id. The record reflects that two of these female employees indentified were contractors and not Agency employees, and thus were not on the same pay system. Id. at 61-62. Therefore, based on the above, we find that Complainant has failed to establish that the Agency's reasons were pretext for discrimination or were motivated by discriminatory or retaliatory animus.
The Equal Pay Act.
The U.S. 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, 195 (1974). To establish a violation of the EPA, Complainant must show that she received less pay than a male employee for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. Id. at 195; Sheppard v. Equal Employment Opportunity Comm., EEOC Appeal No. 01A02919 (Sep. 12, 2000); see also 29 C.F.R.
� 1620.14(a).
Once Complainant has met her burden of establishing a prima facie case, the Agency 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 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; Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). 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; Homer 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)).
Upon review, we find that Complainant has failed to establish a prima facie case of discrimination under the EPA. As noted above, the record reflects that Complainant failed to specifically identify a male employee who received higher pay. Id. at 46-47. We note that Complainant only indentified female employees who reportedly were receiving foreman's pay for the same duties. ROI, at 55. Further, even assuming that Complainant did establish a prima facie case, we find that the Agency has satisfied an affirmative defense under the EPA; that any pay differential was based on a factor other than sex. Because Complainant was not actually supervising the coworker, she was not due to receive pay for a dual-rate foreman pursuant to Agency policy.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 25, 2014
Date
1 In EEOC Appeal No. 0120110855 (Mar. 5, 2012), req. for recon den'd, EEOC Request No. 0520120378 (Aug. 22, 2012), we found that Complainant failed to establish that she was subjected to discrimination when, on or about September 3, 2009, her position status and pay changed from that of a foreman to a Level III Technician.
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0120130357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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