Gabriele G.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 13, 2016

0120141757 (E.E.O.C. May. 13, 2016)

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

Gabriele G.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120141757

Hearing No. 540-2010-00085X

Agency No. HS-09-TSA006663

DECISION

Complainant filed an appeal from the Agency’s March 6, 2014, final decision 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 Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Transportation Security Officer (STSO) at the Phoenix Sky Harbor International Airport.

On August 18, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of sex (female) when:

1. On April 24, 2009, Complainant became aware that the Agency did not afford her
the same opportunity as male Supervisory Transportation Security Officers to
negotiate her June 23, 2002 initial-hiring salary.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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2. On April 24, 2009, Complainant became aware that she was earning a lower salary
than similarly-situated male Supervisory Transportation Security Officers at the
Phoenix Sky Harbor International Airport.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The
AJ dismissed the hearing request and remanded the complaint to the Agency for the issuance of
a final decision. The Agency issued a final decision on July 23, 2013, concluding that the
Agency discriminated against Complainant in violation of Title VII with regard to claim 1 and
in violation of the EPA with respect to claim 2.

As a remedy, the Agency was ordered to increase Complainant’s starting base salary to
$46,400, which was the salary of the highest paid male comparative at the date of hire. The
Agency also awarded Complainant back pay, with interest, for the difference between her
salary and that of the highest paid comparative from June 23, 2002, to the date of the Agency’s
final decision and any other differences in pay she would have received absent the unlawful
discrimination. In addition, the Agency noted that relief for an EPA violation may include an
additional amount equal to the back pay as liquidated damages. The Agency ordered that
Complainant shall be awarded an equal amount of back pay as liquidated damages if the
employer cannot show that the violation was in good faith or that it had reasonable grounds for
believing its actions were not a violation of the EPA. The decision gave the Agency an
additional 60 days to present any evidence and argument that the violation was in good faith
that or that it had reasonable grounds for believing its actions were not a violation of the EPA.
Complainant was also offered 30 days following receipt of the Agency’s submission to submit
a rebuttal. Thereafter, the Agency stated it would issue a decision to Complainant with appeal
rights.

Additionally, the Agency afforded Complainant the opportunity to submit additional evidence
and argument in support of her entitlement to compensatory damages under Title VII. The
decision noted the Agency would have 30 days to submit a rebuttal to Complainant’s claim.
The Agency stated Complainant’s claim for compensatory damages would then be reviewed
and a determination would be made regarding an appropriate award.

Further, the Agency noted that as a prevailing party, Complainant was entitled to reasonable
attorney’s fees and costs, if any. The decision stated that Complainant’s attorney had 30 days
from receipt of the decision to submit a verified statement of costs and an affidavit itemizing
the charges for work on those aspects of the case upon which Complainant prevailed. The
decision noted that if Complainant was not represented by an attorney, she was entitled to
recover reasonable costs as a result of the administrative processing of her complaint.

Subsequently, both parties submitted evidence and argument regarding Complainant’s request
for relief. On March 6, 2014, the Agency issued a Final Agency Decision: Backpay,
Compensatory Damages and Attorney’s Fees. In its decision, the Agency determine that with

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regard to back pay, its July 23, 2013 final decision improperly awarded Complainant back pay
from June 23, 2003, the date of Complainant’s original hire, to the date of the issuance of the
final decision. The Agency noted that the EPA limits recovery of back pay to two years before
the filing of the formal charge of discrimination. The Agency noted it is uncontroverted that
Complainant filed her formal complaint on August 18, 2009. The Agency determined
Complainant’s back pay award was limited to two years prior to August 18, 2009. The
decision denied the Agency’s argument that Complainant’s back pay award should be limited
by a salary downgrade in May 2011, since there was no evidence that Complainant was no
longer performing substantially similar work as her male comparatives as a result of the salary
downgrade.

The decision found the Agency failed to show that the EPA violation at issue was committed in
good faith and that it acted reasonably. The decision noted the Agency had not proffered
evidence that it took affirmative steps to ascertain the requirements of the EPA and to prevent
violations from occurring. The decision noted that while the Agency issued salary guidance,
the guidance did not expressly prohibit EPA violations; nor did the evidence show that the
Agency monitored the salaries awarded by its human resources firm or enacted other measures
to ensure that the firm implemented the salary guidance in accordance with the EPA to keep
violations from occurring. The decision determined the Agency failed to carry its burden of
showing that the EPA violation was committed in good faith and that it acted reasonably.
Thus, Complainant was awarded liquidated damages in the amount equal to the back pay
award.

The decision determined Complainant failed to show that the Agency’s EPA violation was
willful. The decision noted that a willful violation of the EPA entitles a complainant to back
pay from three years prior to the date the formal complaint was filed. The decision found
Complainant offered no evidence that the Agency knew it was violating the EPA or acted in
reckless disregard as to whether it was in compliance. The decision stated there was no
evidence of a discriminatory motive or animus regarding Complainant’s salary; nor was there
any evidence that Complainant brought her concerns to the Agency or that the Agency
responded ineffectively.

The decision also found Complainant was not entitled to pecuniary compensatory damages.
The decision noted that while Complainant provided statements and documentation dating back
to 2004, detailing her Thrift Savings Plan loan and hardship withdrawals, she did not provide
any evidence to establish the requisite nexus with the Agency’s discriminatory conduct. Thus,
the Agency found Complainant was not entitled to pecuniary damages.

With regard to nonpecuniary damages, the Agency noted Complainant had feelings of guilt and
shame because she was not able to help her mother financially or attend her son’s school
activities due to working extra hours and weekends to compensate for not being able to
negotiate her starting salary. The Agency noted Complainant also stated her marriage was
seriously strained by the additional economic pressure, although she provided no details in this
regard other than stating that time with her spouse was limited. The Agency stated that the

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evidence supplied by Complainant in this case is too general to afford more than a very limited
award. The Agency awarded Complainant $2,000 in nonpecuniary, compensatory damages.

Finally, the decision stated the Agency has not received a verified request for attorney’s fees or
costs. Thus, the decision determined no attorney’s fees or costs are awarded.

Complainant filed an appeal with the Commission following receipt of the Agency’s decision.
On May 1, 2014, Complainant requested an extension of time to file a brief in support of her
appeal. The Commission granted Complainant’s request for an extension and Complainant
was given until May 26, 2014, to file her brief. Complainant never filed a brief with the
Commission regarding the present appeal.

In response to Complainant’s appeal, the Agency states that it never received any statement or
brief from Complainant. In addition, the Agency notes that it had contacted Complainant’s
attorney via electronic mail three times between May and June 2014, to request that the
attorney serve the Agency with a copy of the brief but that the Agency had not received a
response to its requests.

In its brief, the Agency requests its back pay award be upheld. The Agency notes that under
Title VII and the EPA, barring evidence of willful conduct, Complainant is only entitled to two
years of back pay preceding the filing of her complaint. The Agency states Complainant is
only entitled to back pay from two years prior to the filing of her complaint, not from the date
of her hire in 2002. The Agency also requests that despite the order in its decision to the
contrary, the back pay award should be limited to the period in which Complainant actually
served as an STSO. Specifically, the Agency argues that in light of Complainant’s May 22,
2011 downgrade from STSO to TSO, for personal cause, her back pay award should terminate
on that date, and she should only be awarded back pay from August 18, 2007, through May
21, 2011.

In addition, the Agency requests its compensatory damages award be upheld. The Agency
notes it awarded Complainant an equal amount of back pay as liquidated damages or $2,000,
whichever is greater, but not both. The Agency notes that compensatory damages under Title
VII and liquidated damages under the EPA are both considered “compensatory in nature” and
that, as a result, a complainant cannot obtain both a compensatory damages award under Title
VII and a liquidated damages award under the EPA for the same discrimination.

Regarding its finding that the Agency’s violation of the EPA was not willful, the Agency
argues this determination should not be set aside because Complainant offered no evidence that
the Agency knew it was violating the EPA or acted in reckless disregard as to whether it was
in compliance.

The Agency reiterates its contention that Complainant provided almost no evidence of out-of-
pocket expenses or of emotional pain and suffering to warrant a higher compensatory damages
award. The Agency requests its award of $2,000 in nonpecuniary damages be upheld.

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Finally, the Agency argues its decision not to award attorney’s fees should be upheld. The
Agency states Complainant is not entitled to attorney’s fees because she failed to produce a
verified statement of attorney’s fees.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

At the outset, we note that on appeal Complainant does not challenge the Agency’s finding of
discrimination under Title VII or the EPA. Thus, we AFFIRM the finding of discrimination
under both statutes.

Regarding the remedies, we find that Complainant has not raised on appeal any specific
challenge to any remedy.

An individual may recover under both the EPA and Title VII for the same period of time as
long as the same individual does not receive duplicative relief for the same wrong. 29 C.F.R.
§ 1620.27(b). Relief is computed to give an individual the “highest benefit” which either
statute would provide. Id. Under Title VII, a complainant may recover back pay for two
years prior to the filing of the complaint. EEOC Compliance Manual Section 10,
“Compensation Discrimination,” No. 915.003, at 10-VI (Dec. 5, 2000) (citations omitted).
Back pay under the EPA dates back to two years prior to the filing of the complaint. Id. In
cases of willful violations, the back pay period is three years. Id. The EPA also provides for
liquidated damages, at an amount equal to back pay, unless the agency proves that it acted in
“good faith” and had reasonable grounds to believe that its actions did not violate the EPA.
Id.

Upon review, we find the March 6, 2014 final decision properly awarded Complainant back
pay retroactive to August 18, 2007 (two years prior to the date from which the complaint was
filed). With regard to the Agency’s contention in its appellate brief that back pay should
terminate on May 21, 2011, due to Complainant’s downgrade from an STSO to a TSO, we
note that the same argument was rejected in the Agency’s final decision. It is too late now for
the Agency to raise such an argument in response to Complainant’s appeal. If the Agency
wanted to challenge the final decision’s award of back pay beyond May 21, 2011, it should
have filed a timely appeal with the Commission as provided for in 29 C.F.R. § 1614.401.

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In addition, we find the final decision properly determined the Agency did not establish that it
acted in “good faith” and had reasonable grounds to believe that is actions did not violate the
EPA. Thus, we affirm the award of liquidated damages in an amount equal to the back pay
awarded.

We also find that the decision properly found that Complainant failed to establish that the EPA
violation at issue was willful. Thus, Complainant is not entitled to back pay from three years
prior to the date from which the complaint was filed.

Moreover, we find the Agency properly determined Complainant was not entitled to pecuniary
compensatory damages. We also find that the Agency’s award of $2,000 in nonpecuniary
damages was appropriate.

Although we find that the liquated damage award as being equal to the back pay award is
appropriate and the $2,000 in nonpecuniary damages is appropriate, we find, as did the
Agency in its decision, that double recovery is not allowed. The amount of the back pay,
however, has yet to be calculated. Therefore, Complainant shall only be awarded the greater
of $2,000 (nonpecuniary damages) or the liquidated damages (which equals the back pay), but
not both.

Finally, we affirm the Agency’s decision to not to award attorney’s fees or costs. There is no
evidence in the record or claim by Complainant that she submitted a verified request for
attorney’s fees or costs.

CONCLUSION

Accordingly, the Agency’s final decision finding discrimination on claims 1 and 2 is
AFFIRMED. The Agency’s decision on relief is also AFFIRMED as slightly modified herein.

ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 60 days of the date this decision becomes final, the Agency shall increase
Complainant’s starting base salary to $46,400, which is the salary of the highest paid
male comparative at the date of hire. If the increase to $46,400 results in a salary
higher than allowed in Complainant’s current pay band, then the Agency shall increase
Complainant’s base salary to the maximum allowed in her current salary band.

2. Within 60 days of the date this decision becomes final, the Agency shall pay
Complainant back pay, with interest, for the difference between Complainant’s salary
and that of the highest paid comparative, with interest, retroactive to August 18, 2007
(two years prior to the date which the complaint in this matter was filed) and other

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appropriate benefits that Complainant would have been entitled but for the
discrimination.

3. Within 60 days of the date this decision becomes final, the Agency shall pay
Complainant an equal amount of back pay as liquidated damages; alternatively, the
Agency shall pay Complainant compensatory damages in the amount of $2,000,
whichever is greater (liquidated damages or compensatory damages), but not both.

4. Within 180 days of the date this decision becomes final, the Agency shall provide
training to the responsible Agency officials with regard to the prohibitions against sex
discrimination under Title VII and the Equal Pay Act.

5. Within 60 days of the date this decision becomes final, the Agency shall consider taking
disciplinary action against the responsible Agency officials for discriminating against
Complainant. The Agency shall report its decision to the Commission and specify
what, if any, action was taken. If the Agency decides not to take disciplinary action,
then it shall set forth the reasons for its decision not to impose discipline.

The Agency is further directed to submit a report of compliance, as provided in the statement
herein entitled “Implementation of the Commission's Decision.” The report shall include
supporting documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at its Phoenix Sky Harbor International Airport, in Phoenix
Arizona, copies of the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted both in hard copy and electronic
format by the Agency within 30 calendar days of the date this decision becomes final, and shall
remain posted for 60 consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The Agency shall take reasonable steps to ensure
that said notices are not altered, defaced, or covered by any other material. The original
signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within 10 calendar days of the
expiration of the posting period.
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

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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 (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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).

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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 13, 2016
Date