01a40827
07-28-2005
Dennis Billups, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Dennis Billups v. Department of Energy
01A40827
July 28, 2005
Dennis Billups,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A40827
Agency No. 01(05)OR
Hearing No. 250-A1-8226X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) complaint of unlawful 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
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Personnel Management Specialist at
the agency's Oak Ridge Operations facility, filed a formal EEO complaint
on October 16, 2000, alleging that the agency discriminated against him
on the bases of race (African-American) and sex (male) when:
(1) in September 2000, the agency rewrote his position description in
a manner that allegedly understated the major duties of his position,
in violation of Title VII; and
(2) the agency allegedly paid him a lower rate than similarly-situated
white female employees, in violation of the EPA.
BACKGROUND
The agency hired complainant as a Personnel Management Specialist,
GS-12 (PMS) in September 1999. Soon after starting work as a PMS,
complainant discovered his predecessor (P1), a woman, had been paid at
the GS-13 level. Complainant sought a salary upgrade, but was initially
told that he had not worked in his position long enough to be promoted.
Another agency manager, however, initiated a revision of complainant's
position description (PD), with the goal of promoting complainant to
the GS-13 level.
The agency updated complainant's PD, but not to complainant's
satisfaction. Complainant felt that the knowledge, skill, and
responsibilities he utilized in his GS-12 position were commensurate
with the requirements of the GS-13 level. He also claimed that the PD
understated the difficulty and complexity of his workload, and that it
failed to reflect the fact that his Principal Management Contact (PMC)
duties comprised 75% of his workload. Finally, complainant contended
that the process the agency used to conduct the PD revision violated
Office of Personnel Management (OPM) standards.
The agency contended otherwise. First, it claimed that the PMC
duties were a minor part of complainant's job and did not warrant a
promotion. It explained that the department in which complainant worked
operated on a personnel generalist concept where, in addition to their
generalist duties, PMS employees are assigned to specific program areas.
In complainant's case, it was the PMC assignment, but this assignment
was merely one of several functions that the agency rotated among the
PMS employees. The agency also differentiated complainant's work from
that of P1 and stated that P1's level of involvement in her projects rose
to the GS-13 level, but that complainant's did not. Furthermore, the
agency averred that its PD revision process complied with OPM standards.
Frustrated with his pay rate and the agency's PD review, complainant
filed a complaint of discrimination. An EEO Investigator interviewed
complainant and other agency employees and compiled documentation
pertaining to complainant's position and relevant agency policies
and procedures. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
In analyzing claim 1, the AJ followed the three-prong burden-shifting
formula set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973).
He did not address the first prong�whether complainant established a
prima facie case of discrimination�and instead focused on the remaining
two prongs: whether the agency proffered a legitimate, nondiscriminatory
reason for its actions, and whether the complainant offered sufficient
evidence that the agency's stated reason was pretext for discrimination.
First the AJ held that the agency did state a legitimate,
nondiscriminatory reason for its decision, namely, that it based
the PD on a comparison of actual work performed by GS-12s and GS-13s.
The AJ found that the agency witness testimony credibly demonstrated the
differences between GS-12 and GS-13 level work, and that complainant had
not performed at the GS-13 level. He then concluded that complainant
failed to demonstrate by a preponderance of the evidence that he was
discriminated against based on his race or gender. In reaching this
conclusion, the AJ found that the evidence presented by complainant was
not sufficiently persuasive to carry his burden of proof.
With regard to claim 2, the AJ found that complainant failed to establish
a prima facie case under the EPA because complainant did not demonstrate
that he was performing equal work, requiring equal skill, effort, and
responsibility, and effort, under similar working conditions, within the
same establishment as his female comparators. The AJ further stated
that even assuming that complainant did establish a prima facie case,
the agency had satisfied an affirmative defense under the EPA, namely,
that the pay rates were based on a merit system. The agency's final
action implemented the AJ's decision of no discrimination.
On appeal, complainant contends that the AJ erred when he did not allow
complainant to call six of his requested witnesses; that an adverse
inference should have been drawn from the agency's failure to preserve
relevant evidence; that agency witnesses were not credible; that the AJ
erroneously interpreted the laws, regulations, and established policy;
and that the AJ misapplied the facts of the case.
In response, the agency contends that the AJ correctly interpreted the
facts of the case when he found no discrimination in claim 1 and no
prima facie case in claim 2. The agency also claims that it had not
failed to preserve relevant evidence and explains that the evidence
complainant had requested, P1's personnel folder, had been sent to the
National Records Center after her retirement, pursuant to OPM guidelines.
The agency supplied a copy of these guidelines to the Commission.
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. 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.
ANALYSIS AND FINDINGS
Claim 1: Revised Position Description
In a claim such as complainant's, where there is an absence of direct
evidence of discrimination, the allocation of burdens and order of
presentation of proof follow a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this analysis,
complainant initially must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. See St. Mary's Honor
Cntr. V. Hicks, 509 U.S. 502, 507 (1993); Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Of particular significance is evidence that
the same management officials afforded more favorable treatment to
an employee outside of complainant's protected groups under similar
circumstances. If the complainant establishes a prima facie cases,
the agency must articulate a legitimate, nondiscriminatory reason for
the challenged actions. Burdine, 450 U.S. at 252-53; McDonnell Douglas,
411 U.S. at 802. Finally, if the agency is successful in meeting this
burden, complainant must prove, by a preponderance of the evidence, that
the reason proffered by the agency was a pretext for discrimination.
McDonnell Douglas, 411 U.S. at 802. The ultimate burden of persuasion
remains at all times with complainant. Burdine, 450 U.S. at 253.
Although the first step in disparate treatment cases is normally to
determine the existence of a prima facie case, it is not necessary
when the agency has articulated legitimate, nondiscriminatory reasons
for its actions. When this is the case, the analysis can proceed to
the third step of the analysis, namely, whether complainant has shown
by a preponderance of the evidence that the agency's actions resulted
from discriminatory animus. See Door v. Dept. of Justice, EEOC Appeal
No. 01A34298 (January 5, 2005). Here, we find that the agency has
articulated legitimate, nondiscriminatory reasons in each instance below,
and that complainant has failed to rebut the agency's stated reasons as
pretext for discrimination.
The record supports the AJ's determination that the agency stated
legitimate, nondiscriminatory reasons for utilizing the process it did
for revising complainant's PD, as well as the final contents of the PD.
Specifically, the agency stated that it followed proper procedures
for revising the PD, that complainant's PMC duties were incidental to
his generalist duties, and that there were vast differences between
GS-13-level work and the GS-12 work that complainant was doing.
The AJ found these explanations credible. It is worth noting that
complainant strongly disagrees with the AJ's credibility determination.
It is the Commission's policy, however, that a credibility determination
of an AJ based on the demeanor or tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts
the testimony of the witness or the testimony otherwise so lacks in
credibility that a reasonable fact-finder would not credit it. See EEO
Management Directive 110, as revised, Nov. 9, 1999 (MD-110), at 9-16.
Based on this standard of deference, we concur with the AJ that the
agency's reasons are legitimate, and that complainant has failed to show
that the agency's revision of his PD was conducted out of discriminatory
animus towards his race or gender.
Claim 2: Complainant's Pay Rate
Complainant's claim of sex discrimination with regard to his pay rate
raises an issue under the Equal Pay Act (EPA). 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, a
complainant must show that he or 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. Id.; See also 29 C.F.R. � 1620.14(a). Once the complainant
has met this burden, an employer may avoid liability only if it can prove
that the pay difference is justified under one of the four affirmative
defenses set fourth 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 as 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.
Upon review of the record, we concur with the AJ that complainant failed
to establish a prima facie case of discrimination under the EPA because
he did not perform equal work to that of the female, GS-13 comparators.
Specifically, the AJ noted that the first comparator (complainant's
predecessor, P1), had worked on an intense, long-term project of
significant importance to a large number of employees. The AJ delineated
the superior qualifications of the second comparator (C2), noting that
C2 had taken on additional responsibilities, showed initiative, and
initiated a program which she oversaw through its completion. Finally,
the AJ detailed a third comparator's (C3) work product, noting that C3
developed an automated human resources information system, developed
a new performance management program, and negotiated with the union.
In response to complainant's allegation of an agency-wide agenda to
promote white females over other employees, the AJ noted that C2 obtained
her GS-13 status through the competitive process, and C3 only after
eight years at the GS-12 level. The AJ also found it significant that an
African-American man in the PMS position had recently been promoted to the
GS-13 level. Finally, the AJ found credible the agency's determination
that the comparator's roles, responsibilities, and abilities surpassed
complainant's. As stated above, the AJ's credibility determinations are
due deference; therefore, we agree that complainant has not shown that
he and the comparators performed equal work as required to establish a
prima facie case under the EPA.
Adverse Influence
Finally, we agree with the agency that there is no need to draw
an adverse inference against the agency for failing to produce P1's
personnel records. In his brief to the Commission, complainant claims
that the agency improperly withheld these records from him. He further
contends that these records were not retained as required by OPM policies.
Conversely, the agency contends that it did follow OPM mandates by
sending the files to the National Records Center after P1's retirement.
The agency supplements its contention with a copy of OPM guidelines on
personnel recordkeeping. We find the agency's argument persuasively
counteracts complainant's accusation, and thus there is no need to draw
an adverse influence from the records' absence. Additionally, we find
that the record is substantial and well developed, and that any adverse
influence that would have been drawn would be inconsequential to the
outcome of complainant's case.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We conclude that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's race or gender. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final order.
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
July 28, 2005
__________________
Date