0120152464
01-17-2018
Iesha P.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iesha P.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120152464
Hearing No. 510-2014-00139X
Agency No. 201325305FAA03
DECISION
On June 29, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 15, 2015 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management & Program Assistant (MPA) at the Agency's Jacksonville District Office facility in Hilliard Florida. The record indicates that Complainant's position as an MPA required her to provide support and assistance to several managers in the department.
On October 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (59), and reprisal2 when:
1. from May 2013 and ongoing, Complainant was subjected to harassment by her second level supervisor ("S2") (male, 63), including reassigning her to another manager ("S1") (male, 46), effective August 25, 2013, who she alleged had a history of verbally abusing her; and
2. Complainant has been compensated at a lower pay grade than similarly situated coworkers whose work was substantially equal to hers in terms of skill, effort, and responsibility.
At the conclusion of the investigation into her complaint, the Agency provided Complainant 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, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
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").
As an initial matter, on appeal Complainant has argued that the Agency failed to adequately develop the record during the investigation, pointing to the fact that no affidavit was secured from a female comparator, and inadequate evidence was gathered concerning how she was treated following her 2010 EEO complaint. She also argues that certain evidence concerning alleged pay disparity was not produced. However, we note that while Complainant requested a hearing on her complaint, she later withdrew that request. Complainant had ample opportunity to review the report of investigation at the time she decided not to have a hearing. A hearing would have been Complainant's opportunity to present additional witnesses and submit evidence, as well as cross-examine Agency witnesses, to address the inadequacies she asserts are in the record. However, she chose not to avail herself of this opportunity. We will consider this in deciding whether or not Complainant met her burden of proving she was subjected to discrimination.
Hostile Work Environment
In support of her claim of ongoing harassment, Complainant alleged that on May 3, 2013, S2 made inappropriate comments, on August 1, 2013, she was accused of falsifying time and attendance records, and on August 25, 2013, she was reassigned to another manager.
To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Here, according to Complainant, during her performance review meeting on May 3, 2013, S2 spoke to her in an inappropriate tone, said that she was "poison" to the office, that she would not be successful in an Administrative Officer detail she was interested in, and that she thought of herself as a "victim." She also alleged, without much detail, that she was kept out of the email loop and deprived of information necessary to help her succeed, and had been denied promotional opportunities, although she did not identify any particular open positions she had applied for and been denied. However, she stated that S2 groomed younger women, and aided them in obtaining promotional opportunities.
S2 testified that during the May 3 meeting, he discussed with Complainant the effect he believed her negative attitude was having on the office atmosphere and the morale of other employees. Another management official, who attended the meeting, stated that S2 did use the term "poison pill" to describe the effects he believed some of Complainant's actions were having on the office.
One of the concerns raised by Complainant at the meeting was an Administrative Officer position anticipated to become available in the future. Following the meeting, Complainant was granted her request for a detail to the Administrative Officer position.
Complainant also claimed that on August 1, 2013, S2 asked to meet with her concerning allegations that she had falsified certain time and attendance reports. She stated that she was required to submit a written statement answering a series of questions concerning her time and attendance, which she did after consulting with her union representative. Subsequently, Complainant was not disciplined or subjected to any other negative personnel action regarding her time and attendance reports.
S2 stated that the concerns about Complainant's time and attendance reports had been reported to him by the timekeeper because there were certain unapproved codes on Complainant's time and attendance reports when she was on the Administrative Officer position detail. Complainant said she later filed an administrative complaint with the Agency's Accountability Board, alleging the female timekeeper that used her close and personal relationship with S2 to try to get Complainant fired because she perceived Complainant as her competition for the Administrative Officer position.3
Effective August 25, 2013, S2 reassigned Complainant to another manager (S1). Complainant alleged that he did so to intimidate her from competing for the permanent Administrative Officer position. Complainant alleged that S2 knew she would not want to work for S1 due to issues they had had in the past. S2 stated that he decided to reassign Complainant away from his supervision because she had complained of an inappropriate relationship between himself and the timekeeper, as well as improper conduct on his part, and he believed they no longer had a productive working relationship.
S2 denied reassigning Complainant to S1 to hurt her career. He stated that he was aware that in 2010 there was a minor incident between Complainant and S1. S1 had asked Complainant to order printer toner, and when she refused he made a condescending remark. S1 was verbally counseled by S2 regarding his remark, and there is no evidence of any further incidents.
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her sex, age or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
On appeal, Complainant argues that "there is no dispute that the conduct was unwelcome and that [S2] was Complainant's supervisor. Accordingly, Complainant has established that she was the victim of unlawful harassment." Such an argument, however, ignores the requirement that any such unwelcome conduct be based on a protected basis or bases and must be severe or pervasive enough to alter the conditions of a complainant's employment. Such is not the case here.
The record is clear that Complainant had a contentious relationship with S2 and she cited to several incidents which she found to be adverse or disruptive to her. However, Title VII is not a general civility code. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The record simply does not show that Complainant's sex, age or prior EEO activity played a role in the incidents at issue. Complainant chose to withdraw her request for a hearing so the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, we can only evaluate the facts based on the weight of the evidence presented during the investigation. There is not enough evidence from which a reasonable fact finder could conclude the disputed actions resulted from sex or age discrimination, or retaliatory animus. Accordingly, we conclude that Complainant failed to establish her hostile work environment claim.
Sex-Based Equal Pay Act Claim
The United States 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 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he 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. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003).
Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (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 factor other than sex. Id.
The requirement of "equal work" does not mean that the jobs must be identical, but only that they must be "substantially equal." Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976). The terms skill, effort, and responsibility, "constitute separate tests, each of which must be met in order for the equal pay standard to apply." 29 C.F.R. � 1620.14(a). The factors of skill, effort, and responsibility used to measure the equality of jobs are not precisely definable. Id. Skill includes such things as ""experience, training, education, and ability." 29 C.F.R. �1620.15(a). Effort addresses the amount of "physical or mental exertion needed for the performance of a job." 29 C.F.R. � 1620.16(a). Responsibility concerns "the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation." 29 C.F.R. � 1620.17(a).
The Agency does not dispute that Complainant currently receives less pay than several identified male MPAs who were arguably doing work requiring equal skill, effort, and responsibility, under similar working conditions, within the same establishment. Therefore, we find that Complainant has established her prima facie case, and the issue on appeal is whether or not the Agency has met its burden of proving an affirmative defense.
Here, the Agency's defense is that the pay differential resulted from a factor other than sex. In essence, the Agency asserts that the pay differentials between Complainant and the identified comparators is explained by the job category each employee began his/her employment with the Agency, the length of service, and merit-based awards. The Agency, in its FAD, clearly explained the differences using charts. Complainant does not dispute the information in the charts.
Of particular significance, unlike the male comparators, who were hired directly into higher paying job series (Management & Program Assistant (MPA) - series FV-344 or Program Support Assistant - series FV-303), Complainant started her employment with the Agency as a Secretary (series FV-318), with the lower pay ($32,709) commensurate with that position and different job duties and responsibilities than an MPA. She did not become an MPA until September 2010, when her salary was increased to $41,223, and had been further raised to $43,489 by the time of the investigation into her complaint. Most of the comparators who entered MPA positions (FV-344) in 2009 and 2010, like Complainant, had starting salaries very similar to her MPA salary. While the Agency did not fully detail some of the minor differences in basic starting pay rates, Agency officials explained that it was determined by a number of factors, including prior work experience, education and other relevant background information much as employees for a GS position may be hired at different steps or GS levels for the same position.
The charts also show that Complainant made less than the other three female MPAs, two of whom also started with the Agency in position in better paying job series. Moreover, Complainant's starting salary as an MPA was virtually identical to the only other MPA who was hired as a secretary and promoted to an MPA position in 2010 like Complainant.4
In sum, we conclude, based on a thorough review of the evidence gathered during the investigation, that the Agency has met its burden of establishing its affirmative defense that the pay differentials in this case occurred because of a factor other than sex.
Title VII - Disparate Pay Due to Sex and/or Age
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the Agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
As discussed above, Agency management witnesses have articulated legitimate, non-discriminatory reasons for the differences in pay between Complainant and the other MPAs, and Complainant has failed to prove, by a preponderance of the evidence, that these reasons were pretext designed to mask the true discriminatory motivation based on sex or age. Accordingly, we conclude that Complainant has also failed to establish her Title VII claim with regard to any pay disparity with other MPAs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (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
January 17, 2018
__________________
Date
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.
2 Complainant had previously filed an EEO complaint alleging discriminatory harassment and disparate treatment in August 2010, that was settled. It is undisputed that S2 was aware of this protected activity.
3 Complainant alleges that it was the timekeeper who then left her off email communications sent to others in the office.
4 At the time of the investigation, this comparator had been promoted to another position and was paid more than Complainant.
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0120152464