0120070135
07-09-2009
Helen D. Pierson, Complainant, v. Mary E. Peters, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Helen D. Pierson,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120070135
Hearing No. 310-2005-00179X
Agency No. 2004-18136FAA05
DECISION
On October 5, 2006, complainant filed an appeal from the agency's
September 1, 2006 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, as amended,
29 U.S.C. � 206(d) et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as an operations supervisor at the Fort Worth, Texas Air Route
Traffic Control Center. The record reveals that complainant began her
employment with the agency as an air traffic controller on December
30, 1981. On February 4, 1996, the agency promoted complainant to the
position of temporary operations supervisor and converted her position to
General Schedule (GS) grade 15, step 4. On March 31, 1996, the agency
permanently promoted complainant to operations supervisor and gave her
a 7.83% increase over her previous GS grade 14, step 7 salary as an air
traffic controller.
On October 1, 1998, the agency reclassified the pay structure of all
air traffic controllers and managers who worked at field facilities,
including complainant. The new pay structure changed GS pay grades to an
Air Traffic (AT) System defined by pay bands. Air traffic controllers at
complainant's facility received an approximately 19% pay raise because
of the reclassification, and complainant's grade was converted to a pay
band designation of MSS-2. Under the new pay band structure, employees
promoted to a supervisory position received an 8% pay raise.
On or about October 1, 1998, complainant requested an adjustment in
her pay because the new pay rules allowed junior supervisors to make
a greater salary than she did although she had been a supervisor for
eight years. Complainant maintained that after the reclassification,
she only made 1.3% to 3.56% more than the male air traffic controllers
she supervised as opposed to the 7.83% differential in pay she received
when she was first promoted. Complainant was denied the adjustment.
On July 29, 2001, the pay structure was changed again, from a pre-set 8%
pay raise for employees promoted to a supervisory position to a 0% to 15%
pay raise for supervisory promotions. In May 2003, the agency promoted
three air traffic controllers to temporary operations supervisor positions
with a 5% pay raise. Also in May 2003, the agency temporarily promoted
another male air traffic controller to operations supervisor with a 6.7%
because he was an air traffic control specialist. On April 18, 2004, the
four male operations supervisors were promoted from temporary operations
supervisors to permanent operations supervisors. Three other males who
had not served as temporary supervisors were also promoted to permanent
operations supervisor positions and received 4% pay raises in accordance
with an administrative decision.
For three of the four male employees who had been temporary supervisors,
the 4% pay raise cap would have resulted in a 1% pay decrease. For the
fourth male employee, the administrative cap would have resulted in a
2.7% pay decrease. On May 13, 2004, another female operations supervisor
(C) made a request on her and complainant's behalf for a pay increase,
but the request was denied.
On July 20, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of sex (female) when on April 18,
2004, the agency denied complainant pay equivalent to the pay of her
male coworkers.
In an investigative affidavit, complainant maintained that if she had
received the same equitable adjustment as the four men for whom the
Assistant Manager obtained a pay increase, her base pay would be at
least $4,987 higher per year. Complainant stated that her salary is not
equitable with the temporary supervisors that were promoted to permanent
supervisors after the 1998 reclassification.
The Assistant Manager stated that pay rules governed complainant's
promotional pay increases. The Manager stated that when complainant
was first promoted, she received a 7.8% increase in pay and received
another step increase before the implementation of the new October
1, 1998 pay reclassification system, which gave complainant an 8.7%
raise. The Assistant Manager further stated that complainant's salary
increased 43% during the first three and a half years after her promotion,
and complainant's salary in 2003 was $141,899.00.
The Assistant Manager further stated that the rules that applied to set
pay at the time of complainant's promotion were under the GS pay system,
and the rules that were in place at the time of complainant's transition
from GS to the AT pay structure were set forth in the "AT Compensation
Plan," dated April 1999. She stated that the conversion of the pay
system from a "GS" [General Schedule system] to an "AT" [Air Traffic]
pay system was effective on October 1, 1998, and these rules were applied
to everyone in the affected positions regardless of sex.
The Assistant Manager further stated that in May 2003, four men who
were promoted to temporary operations supervisory positions had their
temporary salary set under the pay rules in effect at the time of their
temporary promotions, and consequently, three of the men received a 5%
increase because the rules in effect at the time required a 5% raise
for a temporary promotion to operations supervisor from air traffic
controller. The Assistant Manager also stated that a fourth person
was promoted from the position of air traffic control specialist, and
the rules in effect at the time of his temporary promotion required a
promotion increase of 6.7% increase from air traffic control specialist
to operations supervisor.
The Assistant Manager also stated that the pay rules changed once
again in December 2003 to allow pay increases for new supervisors in
the range of 0% to 15%, but an administrative rule capped raises at 4%.
The Assistant Manager further stated that if the administrative salary
cap of 4 % were applied to the new operations supervisors, three of the
new permanent operations supervisors would have received a 1% reduction
in pay from the salary they had been making as temporary supervisors.
She stated that the fourth new operations supervisor would have received a
2.6% reduction in pay because of the promotion. She stated that because
it would have been illogical to require someone to take a cut in pay to
accept a promotion, she requested an increase above the administrative
cap for the four men that would keep them at the same salaries they were
earning as temporary supervisors since May 2003. The Assistant Manager
stated that her request to relax the administrative pay cap had nothing
to do with the sex of the operations supervisors, but rather was meant to
ensure an inequitable result. The Air Traffic Control Manager approved
the Assistant Manager's request.
At the conclusion of the investigation, complainant was provided 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 the complainant's objections, the AJ assigned
to the case granted the agency's motion for findings and conclusions
without a hearing in a decision dated July 17, 2006. In that decision,
the AJ found that complainant failed to establish a prima facie case
of disparate treatment because the male employees complainant cited
as comparators were not similarly situated to complainant since they
were promoted at a different time and under different pay rules than
complainant. The AJ further found that complainant failed to establish a
prima facie violation of the Equal Pay Act because the difference in pay
was attributed to different pay rules, not sex. The agency subsequently
issued a final order fully adopting the AJ's finding that complainant
failed to prove that she was subjected to discrimination as alleged.
Complainant did not submit a statement on appeal.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] 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 Chapter 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").
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. 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Upon review of this matter, we first note that the four males that
complainant cited as comparators were promoted to permanent operations
supervisor positions in April 2004, whereas complainant was promoted in
March 1996. Consequently, the pay rules that set complainant's pay are
different than the subsequent pay rules that set the comparators' pay.
Thus, these comparators who were promoted in April 2004 are clearly not
similarly situated to complainant. Complainant additionally compared
herself to male controllers who were not promoted to supervisory
positions, but non-supervisory employees were not under the same pay
rules as employees promoted to supervisory positions. Complainant did
not provide any evidence from which an inference of sex discrimination
could be raised. Consequently, we find that the AJ properly found that
complainant failed to establish a prima facie case of sex discrimination.
Moreover, we find that the agency provided legitimate, non-discriminatory
reasons for its actions. Specifically, the agency stated that
complainant's pay is affected by the pay rules that were in place at the
time that she was promoted. The agency further stated that in order
to prevent employees promoted to permanent supervisor in April 2004
from suffering pay decreases under pay rules, the agency granted these
new supervisors pay retention, which equated to less of a promotional
pay increase than complainant received in 1996. Complainant contended
that if she had received the same equitable adjustment as the four men
for whom the Assistant Manager obtained a pay increase, her base pay
would be at least $4,987 higher per year. However, the record reveals
that three of the four comparators1 made less than complainant during
the relevant time period, and complainant received a larger raise when
she was promoted than any of the comparators. We further note that a
male co-worker who was promoted to supervisor from the same grade and
step as complainant in March 1996 made the same salary as complainant
in April 2004. Thus, we find that complainant failed to provide any
persuasive evidence from which it could be reasonably concluded that
the agency's explanations are pretext for sex discrimination.
To the extent that complainant contends that the agency has violated
the Equal Pay Act, we note that 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 sex 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 Commission, EEOC Appeal No. 01A02919
(September 12, 2000); see also 29 C.F.R. � 1620.14(a).
Once a complainant has met her burden of establishing a prima facie
case, an employer 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)).
In this case, the only comparator who made more than complainant was
a male supervisor who made $354.00 per year more than complainant and
was promoted in April 2004. The agency has presented evidence showing
that the difference in pay is attributable to a factor other than sex,
i.e., complainant was promoted under different pay rules than the
male comparator. The agency further presented evidence revealing that
complainant's pay was also attributable to the agency's drastic overhaul
of its pay structure in 1998, which applied to all air traffic controllers
and supervisors. Complainant has not presented any evidence from which
it could be reasonably concluded that the pay differential is based on
a factor other than sex. Consequently, we conclude that there is no
genuine issue of material fact in this case, and the AJ properly found
no violation of Title VII or the Equal Pay Act. See Julie C. Williams
v. Dept. of Transportation (FAA), EEOC Appeal No. 0120062792 (December
5, 2007) (Commission found no violation of Title VII and Equal Pay Act
because different pay rules were in effect when complainant received
a promotion in 1997 than were in effect when her alleged comparatives
were promoted in 2004).
CONCLUSION
Accordingly, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final order, because the Administrative Judge's issuance of a
decision without a hearing was appropriate, and a preponderance of the
record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction within two years or, if the violation is willful, three years
of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The
filing of the civil action will terminate the administrative processing
of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
___07-09-09_______________
Date
1 The fourth comparator made $354.00 per year more than complainant
during the relevant time period.
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0120070135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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