0120130416
10-08-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130416
Hearing No. 570-2010-00767X
Agency No. 2004-0116-2009-104150
DECISION
Complainant filed an appeal from the Agency's September 21, 2012 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant, an African-American woman, age 44, was employed in the Agency's Office of Information Technology. She worked as a Director, Personnel Administrative Oversight, GS-14, at the Agency's Business Operations, Human Resources and Career Development Department (HRCD) in Washington, D.C.
On August 5, 2009, Complainant contacted an EEO Counselor after she was informed that her "accretion of duties promotion" to a GS-15 grade was contingent upon approval of a major reorganization. She filed a formal EEO complaint on November 17, 2009, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (44) when the Agency refused to pay her at the same level it paid other directors, who were younger Caucasian males, who were granted GS-15 grade level positions and received GS-15 pay. Complainant claimed that she had been "denied a proper grade and standing within the Office for Information Technology Resource Management (ITRM) as a Service Director" because of her race, sex and age.
The Agency accepted Complainant's complaint. The Agency defined the accepted claim, as follows:
Whether on the bases of race (African American), sex (female), and age, management subjected complainant to disparate treatment on August 3, 2009, when, although currently performing the duties and responsibilities intrinsic in the GS-15 position, she became aware that her promotion to a GS-15 grade is now contingent upon approval of a major reorganization while her counterparts encumber positions at GS-15 grade. Thus, denied a promotion / non-competitive (accretion of duties).
Complainant's first level supervisor was the Manager of HRCD (Caucasian woman, age unknown) (Manager). The Manager awarded Complainant a rating of "Outstanding" for her duties as both the Director of Business Relations and the Director of ITHR Operations. She recommended that Complainant be promoted to GS-15 and cited Complainant's performance and functions as the reasons.
Complainant and the other directors she compared herself to reported to the same second line supervisor, the Deputy Assistant Secretary (DAS) (Caucasian male, age unknown) for the Office of Information and Technology. He oversees the entire Information Technology Resource Management Department. The two comparators offered by Complainant were: (1) the Director of Financial Management Services (younger non-African American male), who was a GS-15 and had oversight over two GS-14s, a GS-13 and a GS-9; and (2) the Director of Information Technology (IT) Budget Formulation (younger non-African American male), who was also a GS-15 and oversaw two GS-14s.
In November of 2008, Complainant was realigned to the HRCD. She was responsible for managing and directing the Human Resources Program for the Office of Information and Technology (OIT) in the Central Office and in the remote work areas. Complainant functions as the director for two offices. She serves as the first line supervisor of four management analysts, one GGS-14, and three GS-13s. ROI, Complainant's Affidavit. Her staff is primarily African-American, older and women.
Outside of the Human Resources and Career Development Department, no directors operate at the GS-14 level. ROI, Affidavit of the DAS.
In 2008, Complainant talked with her Manager. She informed the Manager that her position description had not changed, although her duties had changed, and that she was being held accountable for work that was not officially documented and warranted recognition for an accretion of duty promotion. The Manager had numerous meetings with the Principal Deputy Assistant Secretary (PDAS) of the Human Resources and Administration Department in an effort to secure pay grade increases for the directors in her department.
In December of 2008, the Manager began the process of developing a reorganization proposal which would increase the pay schedule for all of her directors. The Manager advocated that Complainant was qualified for a promotion to the GS-15 grade level based on her duties.
According to her October 16, 2009 performance evaluation, Complainant served as the first level supervisor of two, distinct offices in the Personnel Administrative Oversight Office, as was reflected in her performance evaluations. Although she effectively was assigned and fulfilled the duties of two directors, the Agency continued to list, and pay, Complainant at the GS-14 level.
In February 2009, the PDAS informed Complainant that the Agency would not be proposing her non-competitive promotion until approval of the reorganization. Affidavit of Complainant. The record does not show that the Agency ever updated Complainant's position description or addressed the Manager's assessment that Complainant was working at the GS-15 level and not being made for her dual service. The DAS stated that the Agency has yet to act on the reorganization proposal. Affidavit of DAS.
In December of 2009, Complainant's supervisor (the Manager) accepted another assignment.
The record does not provide evidence of any merit selection process for the other directors. The record is also unclear how the directors of the other department achieved their GS-15 pay grade level after entering the department.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 9, 2012, the AJ issued a Notice of Proposed Summary Judgment. Exhibit 2. Complainant responded to the AJ motion. No discovery was conducted by either party in this case. At the time, Complainant did not have an attorney.
The AJ Decision
On September 17, 2012, the AJ issued a decision without a hearing finding that, "Complainant has not proven by a preponderance of the evidence that the Agency failed to re-classify her because of her race, sex and/or age." The AJ concluded that "the Agency articulated a legitimate non-discriminatory reason for not re-classifying Complainant's Director position at the GS-15 grade level." Relying on the Agency's witness statement, the AJ reasoned that "although [Complainant's supervisor] . . . requested that her Directors be re-classified at the GS-15 grade level, she was unable to get her new organizational chart approved because the Classifier did not concur that her Employee Relations Directors were operating at the GS-15 grade level." The AJ also noted that the witness' conclusion "that it was not appropriate to compare the Director positions across organization." Based on that evidence, the AJ found that the Agency has satisfied its burden of articulating a legitimate reason for not re-classifying Complainant's Director position.
Next, the AJ found that Complainant did not provide specific evidence which created a genuine issue of credibility regarding the witness's explanation for the "Agency's failure to re-classify her Director position at the GS-15 grade level." The AJ acknowledged that Complainant pointed out that the majority of Directors in Complainant's department were African-American older women, whereas the higher-graded comparator group was not. The AJ stated that, "[i]t is undisputed that all of the Directors employed in the IT Department that Complainant compares herself to, obtained their GS-15 grade level positions competitively." The AJ found, therefore, that they were no similarly situated to Complainant and that she has not proffered any evidence to show that any individuals outside her protected groups were promoted non-competitively. The AJ found that Complainant had not provided any pretextual evidence that would create an inference that anyone involved in the reorganization or reclassification process harbored an animus against Blacks, women and/or individuals over 40. The AJ concluded that "this issue cannot survive summary judgment."
The Agency's final action implemented the AJ's decision. This appeal followed.
ANALYSIS AND FINDINGS
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 party'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.
On appeal, Complainant maintains that the AJ erred in entering summary judgment because there are genuine disputes of material fact and the AJ engaged in weighing the credibility issues. Complainant also asserts that the Agency failed to conduct an appropriate, thorough investigation. Complainant notes that the record does not provide a differentiation between the duties of the Director of the Information and Technology Finance Department and the Directors of the Human Resources and Career Development Department, which includes Complainant.
Complainant alleges that the Agency has refused to pay her the GS-15 salary that it pays other directors and failed to upgrade her position description or classification to reflect her duties. In essence, she is alleging that she was subjected to harsher terms and conditions than others outside of her protected group who held the same job title and performed similar functions. We find that Complainant established a prima facie case of race, sex and age discrimination.
In this case, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In brief, the Agency asserts that it was waiting for the reorganization to adjust Complainant's grade and salary.
To ultimately prevail, Complainant must provide evidence that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). In this case, the Agency acknowledges that Complainant was performing as a Director for two offices. Moreover, her supervisor stated that her performance warranted that she be paid at the GS-15 level. Complainant was the only director under the second-level supervision of the DAS not being compensated at the GS-15 level and the record shows repeated delay in changing her position description or providing an accretion of duties review.
The Report of Investigation (ROI) contained only two affidavits, that of Complainant and that of the DAS. The two Agency officials who had the greater knowledge of the events, the Manager, who recommended the reorganization and supported Complainant's promotion to the GS-15 level, provided only a brief, unsigned statement, as did the PDAS. On February 26, 2010, the PDAS of Human Resource and Administration explained, in an unsworn statement, that a Classifier determined that the scope and complexity of the HRCD directors were not equal to that of the directors of Finance and Budget, and therefore, the HRCD directors were not operating at a GS-15 level. He also offered his opinion that it is inappropriate to compare positions across organizations.
The record does not show how the other directors working under the PAD were granted GS-15 status. The record is unclear as to whether there were distinctions between the divisions in terms of functions and responsibilities which would provide a legitimate, non-discriminatory reason for the difference in pay.
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). In this case, there was no discovery. 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Here, Complainant provided an affidavit in her opposition to the Agency's explanation and cited instances where the Agency officials' statements were in contradiction or were based on unverified and unsworn statements. In finding no discrimination, the AJ relied on the unsworn, disputed, and unsupported evidence provided by the Agency.
When the record is viewed in the light most favorable to Complainant, the evidence shows that Complainant's first-line supervisor (who was also the Director of the HRCD Department) evaluated Complainant's qualifications and determined that Complainant's performance and the scope of her duties warranted promotion to, and recognition at, the GS-15 grade level. The evidence also showed that Complainant had been given additional duties and served in dual director positions, but the Agency was not compensating her or documenting her service in the way that it compensated younger, non-African American male Directors.
Further, the record is disputed as to whether Complainant was similarly situated to the Directors of the IT Finance Department. She had responsibilities for business operations. Complainant requested that the Director of the IT Department be interviewed, but the investigator did not include his testimony. The Director of IT offered testimony buttressing Complainant's claim. Looking at the evidence in the light most favorable to Complainant, the record shows that Complainant was similarly situated to the directors within the IT Financial Department. She was assigned in the Office of Information Technology. She functioned in a director capacity, shared similar duties over similarly graded employees, and shared the same supervisor. The Agency did not dispute that Complainant oversaw a similar number of employees at similar grades and yet she received unequal pay.
The record does not provide evidence to support the Agency's contention that promotions are generally competitive and it is very rare that person is promoted on the basis of accretion of duties. The record did not indicate what factors are necessary for an individual to receive a non-competitive promotion and why the position of director in the HRCD Department lacked the complexity and scope to warrant a GS-15 level grade. The testimony that was provided was not provided under oath. Therefore, we find that the AJ erred when he found that, "It is undisputed that all of the Directors employed in the IT Department that Complainant compares herself to, obtained their GS-15 grade level positions competitively." There is no record support for that finding.
The record does not contain testimony from the witnesses that Complainant identified. Complainant argues that "the prejudice to Appellant is extreme" because of the Agency's failure to conduct an investigation, Complainant is unable to proffer evidence of pretext with the necessary specificity to rebut the Agency's stated reason (had to wait for the reorganization before it could upgrade Complainant).
The AJ assumed that it was inappropriate to examine actions across different organizational units. This was based on an unfounded assumption The AJ did not consider that all of the employees held the same title and reported to the same second-level supervisor. The AJ also did not examine whether the reason offered was legitimate and non-discriminatory.
As Complainant points out, the AJ did not consider Complainant's argument in her Opposition to the Notice of Intent to Issue a Motion for Summary Judgment that the Agency's failure or refusal to timely consider Complainant for a non-competitive promotion is evidence of pretext. Although management was on notice that Complainant was working in a capacity well beyond her position description, management never attempted to adjust her position description to match her performance duties pursuant to the relevant Agency guidelines which provide for non-competitive promotion. Correcting the position description could have been done, without a desk audit. Even after the desk audit was requested, the record shows that there was a delay in processing the re-examination of the position descriptions.
In sum, after a careful review of the record, we find that the AJ did not draw justifiable inferences in Complainant's favor, choosing instead to credit the Agency's explanations for its action. Complainant has presented sufficient evidence to defeat summary judgment. We determine, as reflected in our above analysis, that there are simply too many disputed facts and issues of credibility to have issued a decision without a hearing.
CONCLUSION
Therefore, we REVERSE the Agency's final action and we REMAND the matter to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Washington, DC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 tends 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (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
October 8, 2014
__________________
Date
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0120130416
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130416