Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 12, 2014

0120113489 (E.E.O.C. Mar. 12, 2014)

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

Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120113489

Hearing No. 420-2010-00100X

Agency No. DON-09-69450-02969

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s May 27, 2011 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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract
Specialist in the Agency’s Public Works Department (PWD) at the Whiting Field Naval Air
Station in Pensacola, Florida. Complainant was assigned as a GS-12, Step 3 Contract
Specialist beginning in June 2006. Complainant’s duties included performing pre-award
functions for procurements involving complex contracts and administering complex contracts
for procurements. Beginning around June or July 2006, Complainant was included in
numerous emails involving management and, at times, was identified as a Senior Contract
Specialist or the Acquisition Branch Leader/Head. In addition, Complainant participated in
monthly management phone meetings, attended the Supervisory Contract Specialist
Conference, and performed some supervisory functions for two subordinate employees.
Complainant believed she performed the duties of a Supervisory Contract Specialist, but did
not receive any documentation indicating such. The record indicates, however, that non-
supervisory employees received the informational emails, including non-supervisory contract
specialists who were located in small offices or who were the only contract or senior contract
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specialists. Likewise, senior contract specialists and other non-supervisors were invited to
participate in the monthly phone meetings and attend the acquisition conferences.

At a special Mapping and Staffing Meeting on January 16, 2007, Agency management officials
decided that “the Head of Acquisition at each PWD will be fixed at one GS-13 position” and
identified the Whiting Field facility for review for possible changes. Management officials
began reviewing and discussing the matter and ultimately determined that the PWD Whiting
Field facility did not warrant a Supervisory Contract Specialist position at that time. However,
based on what was discussed at the January 2007 meeting, Complainant began requesting that
her position be upgraded to the GS-13 level.

In August 2008, Complainant emailed her second and third-level supervisor (S2 and S3)
referring to the GS-13 position mentioned during the January meeting. Complainant noted that
she had acted as the Acquisition Branch Head since July 2006, and had performed the work of
three people. In February 2009, Complainant inquired with her first-level supervisor (S1)
about the status of the Agency’s advertisement of the Supervisory Contract Specialist position.
S1 apologized to Complainant for how long the process was taking. In April 2009, the Agency
issued a Position Action Request (PAR) for the Supervisory Contract Specialist position and
Complainant was selected for the position in June 2009.

Around the same time, the Agency was converting employees into the National Security
Personnel System (NSPS). As a result, S2 informed S1 that Complainant was being
reassigned, not promoted based on the NSPS guidelines. Under the NSPS, an employee could
only be promoted when he or she moved to a higher pay band. Further, the NSPS allowed for
a discretionary pay increase of zero to five percent in conjunction with a reassignment. S1
requested that Complainant receive a five percent pay increase; however, S2 and S3
determined that a two percent increase was warranted based on the position’s functional
complexity, workload, and the existing staff levels of the facility. On July 19, 2009,
Complainant accepted the reassignment to Supervisory Contract Specialist with a two percent
salary increase.

On September 17, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when:

1. From June 2006 to July 19, 2009, she performed the duties and was recognized by
management as a GS-13 Supervisory Contract Specialist, but was never paid at that
grade;

2. From January 16, 2007 to July 19, 2009, she requested, but was not promoted to
GS-13 according to discussions and decisions made during the Mapping and Staffing
Meeting; and

3. On July 19, 2009, she was reassigned from Contract Specialist to Supervisory
Contract Specialist and was given a two percent increase instead of a five percent
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increase like others reassigned to supervisory positions under the National Security
Personnel System (NSPS).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.1

The AJ held a hearing
on March 23, 2011, and issued a decision on April 28, 2011.
In his decision, the AJ initially assumed arguendo that Complainant established a prima facie
case of discrimination on the alleged bases and determined that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), S2 and S3
testified that Complainant was not recognized as a supervisor until she was later reassigned on
July 19, 2009, and that she was considered the Acquisition Branch Leader without supervisory
duties. Further, S2 testified that Complainant did not supervise employees until July 2009. S3
added that if Complainant supervised employees, she did so without any direction or
communication with her and in violation of her position description. The AJ noted that
Complainant admitted that she never received any documentation stating that she held the
position of supervisor at that time.

With respect to claim (2), the AJ found that there was no evidence that a vacancy
announcement was issued announcing a GS-13 Supervisory Contract Specialist during the
timeframe at issue. S2 received a Position Action Request (PAR) for a Supervisory Contract
Specialist position on March 31, 2009, and submitted it to Business Management for
processing that same day. On June 23, 2009, S2 received the final selection documentation
and processed Complainant’s selection on June 24, 2009.

Finally, regarding claim (3), Complainant identified two male co-workers (CW1 and CW2)
who were both given five percent salary increases upon their reassignment. CW1 was given a
five percent increase in March 2008, because he was in an office (New Orleans) that
historically had an approved Supervisory Contract Specialist position and he had temporarily
held the position previously. In addition, CW1 had seven years experience and the New
Orleans office had a much greater workload, functional complexity, quality of completing
tasks, and existing staff level than the Whiting Field facility. With respect to CW2, he was
reassigned as the Acquisition Core Utilities Branch Supervisor in May 2009, with total utility
acquisition oversight and responsibility, three integrated product teams, and 21 field offices.
Further, CW2’s contract awards exceeded $100 million, he had ten years of relevant
contracting experience including seven as a GS-13 Supervisory Contract Specialist, and two
professional certifications. As a result, CW2 was reassigned and given a five percent increase.
Management testified that Complainant only received a two percent reassignment pay increase
because a higher award could not be supported. Further, Complainant’s office had been
identified as being at a risk of failure.

1 Complainant withdrew sex as a basis of discrimination with respect to claim (1) prior to the
hearing.
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The AJ concluded that Complainant failed to show that that the Agency’s reasons for its actions
were pretext for unlawful discrimination. As a result, the AJ found that Complainant had not
been discriminated against as alleged. The Agency subsequently issued a final order adopting
the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred by not sanctioning the Agency for failing to
meet several pre-hearing deadlines. In addition, Complainant argues that the AJ prevented her
from fully presenting her case at the hearing. Further, Complainant contends that the evidence
shows that she acted in the capacity as the Acquisition Branch Supervisor upon her assignment
to PWD Whiting Field. Finally, Complainant alleges that she was the only exception to the
five percent reassignment pay increase rate as she received two percent while other employees
received five percent. Accordingly, Complainant requests that the Commission reverse the
final order.

STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).
The Commission notes that Complainant alleges on appeal that the AJ failed to sanction the
Agency for its failure to adhere to the deadlines outlined in his orders and denied her a fair
opportunity to present her case. EEOC regulations and Commission precedent provide AJs
with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R.
§ 1614.109; see also

EEO MD-110, at 9-10. The Commission has reviewed the hearing
transcript as well as other documentary evidence in the record and finds there is no persuasive
evidence that the AJ abused his discretion in the instant matter. Further, the Commission is
unable to find any evidence of bias, or other reversible error, resulting from the manner in
which the AJ managed and adjudicated this case.

0120113489

5

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she 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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
The Commission finds that the AJ's determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions is supported by substantial record evidence.
Specifically, as to claim (1), S3 testified that Complainant was not paid as a GS-13 Supervisory
Contract Specialist prior to her reassignment in July 2009, because she was not performing the
complexity of work of a GS-13 and did not perform sufficient supervisory functions. Hr’g
Tr., at 184-86. S3 testified that even though Complainant believed that she was performing
the work of three employees, she was not performing the complicated and complex work
required of a GS-13. Id

. at 184.
As to claims (2) and (3), S3 testified that management officials discussed establishing a GS-13
supervisory position during the Mapping and Staffing meeting in January 2007; however, they
did not immediately implement the recommendations because management believed that
staffing was where it should have been at that time. Hr’g Tr., at 186, 196. Under the NSPS,
an employee needed to supervise at least two subordinates to qualify to be a supervisor. Hr’g
Tr., at 217. In addition, under the NSPS, placing Complainant in the supervisory position
qualified as a reassignment, not a promotion. Id. at 198-99. After the Agency subsequently
added additional staff, management selected Complainant for reassignment to the Supervisory
Contract Specialist position in July 2009. Id. at 198. S2 testified, however, that management
could only approve granting Complainant a two percent salary increase instead of five percent
based on the volume and complexity of the work that Complainant performed and based on the
office’s risk of failure. Id

. at 229.
The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's articulated reasons for its actions
were pretext for discrimination. The record and facts gleaned at the hearing fail to disclose
any evidence purporting to show the Agency's actions were pretext for discriminatory animus.
As a result, the Commission finds that Complainant was not subjected to discrimination as
alleged.

0120113489

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The Commission notes that Complainant’s claim that she was only given a two percent increase
upon her reassignment while a male counterpart was given five percent increase also alleges a
claim under the Equal Pay Act. To establish a violation of the EPA, Complainant must show
that she 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. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); Arnold v. Dep't
of the Treasury

, EEOC Appeal No. 01960490 (July 28, 1998).
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 Class 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)).
Complainant identified two male employees who were reassigned to supervisory positions and
received greater salary increases than she. CW1 was reassigned to Supervisory Contract
Specialist at the PWD New Orleans facility in March 2008, and CW2 transferred to the
Acquisition Core Utilities Branch Supervisor in May 2009. The Commission finds that the
Agency has presented evidence showing that the difference in pay increases is attributable to a
factor other than sex, i.e.

, superior qualifications and complexity of work.
S2 testified that, under the NSPS, the pay range for a discretionary pay increase for a
reassignment was zero to five percent and management was required to provide justification for
any increase above zero. Hr’g Tr., at 221-22. With respect to CW1, S2 affirmed that he
graduated from the Agency’s intern program and had previously served temporarily as a
Supervisory Contract Specialist. ROI, at 461-62. Further, CW1 graduated from the National
Contract Management Association Leadership Development Program, earned a Level I
Certification in Safety and Health, and was an active member of the National Contract
Management Association. Id. Most notably, S2 confirmed that the functional complexity,
workload, quality in completing tasks, and existing staffing levels was significantly greater at
PWD New Orleans than Complainant’s position at Whiting Field. Id. S2 noted that the New
Orleans office was one of four offices in charge of the overwhelming and intense workload of
the Hurricane Katrina Office in Charge of Construction which was responsible for
administering $1.5 billion worth of workload in support of damage in the gulf region. Id

. As
a result, CW1 was approved for a five percent increase with the reassignment.
With regard to CW2, S2 confirmed that CW2 was assigned total utility acquisition oversight
and responsibility for three integrated product teams and 21 field offices. ROI, at 466.
Additionally, CW2 was responsible for contract awards exceeding $100 million, he had daily
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interactions with senior-level command officials, military leaders, and supervisory contract
specialists in the field offices. Id. CW2 had ten years of contracting experiencing including
seven as a supervisory contract specialist, and he possessed multiple acquisition certifications.
Id

.
Based on the foregoing, the Commission finds that the Agency proved that factors other than
sex justify the salary differential between Complainant and the comparators. Consequently,
the Commission finds that Complainant failed to show that the Agency violated the EPA.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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
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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

Date
March 12, 2014