0120170158
09-27-2018
Jacquetta C.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jacquetta C.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
Agency.
Appeal No. 0120170158
Agency No. 200H03732015104348
DECISION
On October 3, 2016, 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 August 30, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUE PRESENTED
Whether Complainant established that she was discriminated against based on age when she was paid at a GS-9, step 5 pay level rather than at a GS-9, step 10 pay level.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative (VSR), GS-9 at the Agency's Veterans Administration Regional Office facility in Manchester, New Hampshire. Complainant, who was born in 1957, began her employment as a GS-7, step 10, VSR on June 2, 2014. Her supervisor was the Supervisory VSR (S1). Prior to accepting the VSR position, Complainant worked for the Agency at the GS-11, step 10, pay level. When she was selected for the VSR position, she started as a GS-7, step 10, because her previous GS-11 pay level was higher than her new GS-7 pay level.
Complainant was promoted, effective May 31, 2015, to the GS-9 pay level. However, when she was promoted, she received the pay level of GS-9, step 5, rather than GS-9, step 10, as she expected. She reported what she believed to be a mistake in her new pay level to S1. S1 contacted Human Resources (HR). The HR Representative assigned to Complainant's promotion explained that it was not a mistake, Complainant was provided the GS-9, step 5 pay level by using "normal pay rules" that HR uses for every promotion. The HR Representative further explained that she understood that Complainant received the step 10 level when she started as a GS-7 employee as a condition of her accepting the position but that the Agency had made no such promise to continue to provide a step 10 rating each time Complainant was promoted.
Complainant testified that she believed that she was placed at the step 5 level rather than the step 10 level when she was promoted to GS-9 due to a discriminatory motive against her based on her age. She testified that she could not think of any reason that she would be placed at the step 5 level when she was promoted to GS-9; so, the reason must be a discriminatory motive against her by S1, the HR Representative, and five other Agency management officials. According to Complainant, her second level supervisor, is "often hostile to her," but is not hostile to younger employees.
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. In accordance with Complainant's request, 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.
CONTENTIONS ON APPEAL
Complainant did not provide a statement or brief on appeal.
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").
Complainant claims that she was subjected to disparate treatment on the bases of her age. The adjudication of a complaint of discrimination alleging disparate treatment under the ADEA follows the McDonnell Douglas three-step evidentiary analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case. Second, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, once the Agency has articulated its reason, Complainant must show that the Agency's reason was pretextual, that is, it was not the true reason for its action. Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. Reeves v, Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
When a complainant alleges that she has been disparately treated as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves, 530 U.S. at 143 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.
Assuming, arguendo, Complainant established a prima facie case of age discrimination, the Agency provided a legitimate, nondiscriminatory reason for its actions. Her pay level was based on the written policies of the Agency which applied to all employees similarly situated to Complainant. We further find that Complainant has failed to provide evidence that the Agency's responses were a pretext for discrimination. She provided unsupported contentions that she was a victim of age discrimination, but her mere assertions are insufficient to prove discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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
_9/27/18_________________
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.
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