Jane Van De Car, Mary Gross, Mary Clare Murphy, Complainants,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 17, 2000
01971656 (E.E.O.C. Aug. 17, 2000)

01971656

08-17-2000

Jane Van De Car, Mary Gross, Mary Clare Murphy, Complainants, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Jane Van De Car, Mary Gross , Mary Clare Murphy v. Department of Veterans Affairs

01971656

August 17, 2000

Jane Van De Car, Mary Gross, )

Mary Clare Murphy, )

Complainants, )

) Appeal Nos. 01971656, 01971657,

) 01971655

) EEOC No. 280-93-4129x, 280-93-4130x, 280-

) 93-4131x, 280-93-4132x, 280-93-

) 4133x, 280-93-4134x

v. ) Agency Nos. 92-947, 92-1741, 92-945, 92-

) 1738, 92-946, 92-1740

Hershel W. Gober, )

Acting Secretary, )

Department of Veterans )

Affairs, )

)

Agency. )

)

DECISION

Complainants filed timely appeals from final agency decisions

concerning their complaints of unlawful employment discrimination on the

basis of age (DOBs: 8/24/44, 9/29/49, 11/2/48), in violation of the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> Complainants allege they were discriminated against

when the agency implemented the Nurses Pay Act of 1990 in a manner which

resulted in their pay being less competitive than nurses under the age of

40. The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R.�1614.405). For the following reasons,

the Commission REVERSES AND REMANDS the agency's final decision.

The record reveals that during the relevant time, complainants were

employed as Intermediate Level (IEQA<2>) nurses at the agency's St. Louis

Medical Center facility. In 1990, Congress passed the Nurses' Pay Act

of 1990 (Public Law 101-366) (the Pay Act) requiring all Veterans'

Hospitals to survey the local geographic communities in which they were

located and set their pay for nurses at competitive rates. The St. Louis

Veterans Medical Center (VAMC) did this, but in a manner, complainants

contend, which favored the younger nurses.

Believing they were victims of discrimination, complainants sought EEO

counseling and, subsequently, filed formal complaints following the first

phase-in of the Act in April 1991 and then additional complaints after the

second January 1992 phase-in. The complaints were investigated and the

complainants requested a hearing before an administrative judge (AJ).

Administrative Judge's Decision

The AJ held a five-day hearing and found that the complainants

established a prima facie case of discrimination under the theory

of disparate impact. The complainants identified five agency actions

which resulted in a disparate impact on older nurses: (1) VAMC's method

of surveying local area hospitals resulted in low beginning salaries;

(2) use of the Special Salary Scale rather than the National Pay Scale

to phase-in complainants to the new schedules under the Pay Act; (3)

setting beginning rates of the IEQA nurses too low; (4) failure to extend

the highest step of the rate range to avoid pay compression at the IEQA

level; and (5) unduly stringent criteria for issuing awards.

The AJ agreed that the above-described actions, with the exception of

the awards criteria, resulted in an adverse impact on older nurses pay

when compared to younger nurses. The disparate impact occurred in the

change to IEQA nurse pay schedule, which, she found, did not make them

as competitive with nurses in the private sector as it did the entry

level nurses. This affected mostly nurses over the age of 40, because,

statistically, most nurses at the intermediate IEQA level of pay were

over age 40. Under the agency's implementation of the Pay Act, the AJ

found that maximum pay at the intermediate level increased by a smaller

increment compared to the entry level. She also concluded that the

agency set beginning salaries for IEQA nurses at only a percentage above

an average of community starting pay, but that for entry level nurses,

beginning pay was set at the maximum pay offered in the community.

These two actions, the AJ concluded, resulted in pay compression for

intermediate IEQA nurses at the higher steps and lower starting salaries

compared to their counterparts in the private sector. Entry level

nurses were competitive with their private sector counterparts at both

the beginning and ending salary steps.

The AJ did not find the agency's business reasons for setting intermediate

level pay credible and concluded that the record showed the agency

did experience problems in recruitment and retention of intermediate

EQA nurses. She further found that the complainant's alternative method

for setting pay was feasible and resulted in a pay schedule with less of

an adverse impact on the older nurses. Specifically, the complainants

argued that beginning pay at the IEQA level should have been set nearer to

the community maximum beginning pay. They also argued their pay should

have been converted from the National Pay Scale and not the Special Pay

scale in effect only for entry level nurses.

The AJ determined that the class relief requested by complainants

should be denied because no class had been alleged and, therefore,

retroactive relief to the class was not supported by the law. She did

not address the specific criteria for certification of the class. As

relief, the AJ ordered retroactive adjustments to the 1993 pay scale

for the complainants, setting the beginning pay at the community maximum

based on a survey, reconversion of complainants' pay from the National

Pay Scale with back pay from April 7, 1991 and payment for their time

spent preparing the case. Finally, the AJ denied any relief related to

the criteria for giving awards under the Pay Act because there was no

disparity shown.

Agency's Final Decision

The agency rejected the AJ's recommended decision in its entirety.

The agency determined that the AJ's conclusions were not supported

by the record which it argued demonstrated that the Pay Acts primary

purpose was to address the problem of recruiting entry level nurses.

Since the Pay Act set forth this purpose, the agency was required to and

was justified in focusing its efforts on attracting entry level nurses.

The agency concluded that it was not experiencing problems in recruitment

and retention of intermediate level nurses and, that, therefore, there

was no need to set beginning pay any higher than it did, nor to raise

the maximum salaries to correct pay compression. The agency decided that

since there was no vacancy problem and a drop in the turnover rate, there

was no reason to set salaries for nurses at the IEQA level any higher.

The agency also concluded that there was no disparate impact on nurses

over the age of 40, because their salaries were sufficiently competitive

after implementation of the Pay Act. Moreover, the agency concluded the

older nurses were not impacted by beginning pay rates because most of

them were paid at or near the end of the scale.

The agency rejected the complainant's alternative methods for setting

pay as not feasible, stating that without justification for extending

the rate range with actual pay- related evidence, the agency did not

have the authority to take such steps. The complainants appealed the

agency's final decision. On the first appeal, the Commission remanded

the case for a supplemental investigation to determine the actual wage

differences, if any, after the agency's implementation of the Act.

Agency's Second Final Decision

In its second final decision, the agency decided there was no disparate

impact based on age because there was virtually no difference in

average pay increases experienced by younger nurses and older nurses.

The agency's data, it argued, showed the average increase in pay for

older and younger nurses in both the entry level and the intermediate

levels was virtually the same. In 1992, nurses on the entry level scale

both under age 40 and over age 40 experienced a similar increase in pay

of 2.9 and 2.7% respectively. Nurses at the intermediate level both

over and under age 40 received a 2.0% increase. Similarly, the agency

contended that on all three dates phasing-in the Pay Act, both age groups

at each pay scale received virtually the same percentage pay increase.

When there were differences, the agency argued, they were negligible.

On appeal, complainants did not file a response to the agency's second

decision nor did the agency file a brief.

ANALYSIS AND CONCLUSIONS

Disparate Impact

a. The Law of Disparate Impact

The complainants brought their case under a theory of disparate

impact which requires a showing that the employer applied a facially

neutral policy that resulted in a disproportionate adverse impact on

their protected group, that there was a statistical disparity and

that the disparity is linked to the challenged policy or practice.

Griggs v. Duke Power, 401 U.S. 424 (1971); Watson v. Fort Worth Bank

and Trust, 487 U.S. 977 (1988). Once a prima facie showing is made,

the employer has the burden of showing that the policy has "a manifest

relationship to the employment in question." Id. If the employer is

successful in their proof, the complainants must then demonstrate that

other alternative methods or policies could be used which do not have

the discriminatory effect but which serve the business purpose. Id.

Practices or procedures, neutral on their face and even neutral in terms

of intent cannot be maintained if they operate to freeze the status quo

of discriminatory employment practices Id. The Civil Rights Act of 1991

(42 U.S.C.�2000e) effectively codified the requirement that an employer

prove a legitimate business purpose and not merely produce evidence of

it as stated in the Supreme Court case, Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989).

Cases brought under the ADEA can raise a claim of disparate impact.

Geller v. Markham, 635 F2d. 1027 (1980 2d Cir.), cert. denied 451

U.S. 945 (1981); Thomas Parker v. Department of the Navy, EEOC

Request No. 05970486 (March 25, 1999) citing Witkowsky v. Department of

the Interior, Petition No. 03970122 (May 20, 1997). As in disparate

impact cases in general, no evidence of motive or discriminatory intent

is needed. Geller at 1032.

b. Standard of Review

Under Commission regulations (64 Fed. Reg 37,644, 37,659 (1999) (to be

codified at 29 C.F.R. � 1614.405(a)), all post-hearing factual findings

by an administrative judge 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 whether or not

discriminatory intent existed, is a factual finding. See Pullman-Standard

Co. v. Swint, 456 U.S. 273, 293 (1982). Applying this principle, we find

substantial evidence to support most of the AJ's factual findings noted

below.

The AJ credited the testimony of the agency's nurse recruiter that in

1991, 62% of the 378 nurses at VAMC were classified as IEQA. The nurse

recruiter's responsibilities included keeping and tracking recruitment and

retention data on the nursing staff at VAMC and thus, despite the agency's

contention that her testimony contained facts of unknown origin, we find

no reason to overturn the AJ's credibility determination. The AJ further

found that like complainants, 73% of nurses classified as (IEQA) at VAMC

were over the age of 40<3>, whereas only 27% were under the age of 40.

Conversely, 69% of entry level nurses<4> were under the age of 40.

The AJ found these numbers to be statistically significant. Thus,

the majority of nurses at VAMC in 1991 were paid at the IEQA level.

The agency did not dispute these data and therefore, the AJ's findings

in this regard are sustained.

In addition, the AJ's conclusion that the VAMC decisions related to

implementing the Pay Act caused an adverse impact on nurses over age

40 in terms of their pay was generally supported by the evidence.

The agency was constrained by the Pay Act to set the beginning pay of

both intermediate and entry level nurses (non-EQA) at no more than

maximum community salaries. The result was that the pay of nurses at

the intermediate level decreased in dollar amounts at each step from 1990

levels compared to an increase at each step at the entry level (Table 3).

Another result was pay compression at the top step of the schedule for the

IEQA nurses which was exacerbated by the agency's unwillingness to extend

the steps to match more closely maximum pay in the private sector.

The AJ also concluded that the VAMC's conversion method<5> had a

disparate impact on IEQA nurses because they received less in salary

increases than if they had been converted from the National Pay Schedule

(NPS) under which they had actually been paid.<6> The record does not

support the AJ's findings because on average the increases for entry and

intermediate nurses were about the same with smaller differences more

attributable to the agency's setting of beginning pay described above.

The record supports the AJ's conclusion that after the agency implemented

the Pay Act, IEQA nurses were making more than $16,000.00 less at the

maximum step than the highest paying hospital offered in the private

sector.<7> A comparison of the entry level nurse pay indicates they

were much more competitive with a difference in top pay of about

$7,000.00.<8> The Medical Director at VAMC acknowledged the relative

lack of competitiveness in pay for IEQA nurses in written communication

with the agency's central office and instituted some limited adjustments

in the 1992 pay schedule.

The most prominent indication that the agency's pay-setting decisions

had an adverse impact on older nurses was the difference in the per step

increase at the IEQA level. The following chart illustrates the sizable

reductions in step increases at the IEQA level when compared with those

at the entry level.

Table 1. Value of Step Increases and Comparison with January 14, 1990<9>

Entry Grade

Level I Level II

Date of Change

and Hospital Value % Change from 1990 Value % Change from 1990

1/14/90 - JB & JC $606 -- $709 --

1/13/91 - JB & JC $631 4.13% $738 4.09%

4/7/91 - JB $755 24.59% $755 6.49%

1/12/92 - JB $754 24.42% $754 6.35%

4/7/91 - JC $773 27.56% $773 9.03%

1/12/92 - JC $772 27.39% $772 8.89%

Intermediate Grade

Level I Level II

Date of Change

and Hospital Value % Change from 1990 Value % Change from 1990

1/14/90 - JB & JC<10> $824 -- $996 --

1/13/91 - JB & JC $857 4.00% $996 0.00%

4/7/91 - JB $875 6.19% $875 -12.15%

1/12/92 - JB $893 8.37% $893 -10.34%

4/7/91 - JC $897 8.86% $897 - 9.94%

1/12/92 - JC $915 11.04% $915 - 8.13%

Similar disparities described above can be seen in a comparison of pay

scales before the Pay Act implementation in April 1991. Intermediate

level nurse pay was lower at each step than in 1990. In contrast,

entry level nurse pay increased at each step.

Table 2. Salaries of Intermediate Nurses at John Cochran<11>

Step Jan. 14, 1990 Jan. 13, 1991<12> April 7, 1991 Jan. 12, 1992

1 $29,891 $31,116 $29,910 $30,513

2 $30,887 $32,153 $30,807 $31,428

3 $31,883 $33,190 $31,704 $32,343

4 $32,879 $34,227 $32,601 $33,258

5 $33,875 $35,264 $33,498 $34,173

6 $34,871 $36,301 $34,395 $35,088

7 $35,867 $37,338 $35,292 $36,003

8 $36,863 $38,375 $36,189 $36,918

9 $37,859 $39,412 $37,086 $37,833

10 $38,855 $40,449 $37,983 $38,748

11 $38,880 $39,663

12 $39,777 $40,578

13 $40,674 $41,493

Salaries of Entry Level Nurses at John Cochran

Step Jan. 14, 1990 Jan. 13, 1991 April 7, 1991 Jan. 12, 1992

1 $23,628 $24,598 $25,792 $25,766

2 $24,234 $25,229 $26,565 $26,538

3 $24,840 $25,860 $27,338 $27,310

4 $25,446 $26,491 $28,111 $28,082

5 $26,052 $27,122 $28,884 $28,854

6 $26,658 $27,753 $29,657 $29,626

7 $27,264 $28,384 $30,430 $30,398

8 $27,870 $29,015 $31,203 $31,170

9 $28,476 $29,646 $31,976 $31,942

10 $29,082 $30,277 $32,749 $32,714

11 $33,522 $33,486

12 $34,295 $34,258

Business Necessity

The AJ rejected the agency's contention that the Pay Act was intended only

to enhance its ability to attract entry level nurses, thus warranting

its focus on their salaries alone. We agree with the AJ that there

is nothing set forth in the Pay Act or language to which the agency

points, which supports their argument. Rather by its plain language,

the statute refers in general terms to recruitment and retention without

qualification. The agency concedes it was required to enhance �retention�

meaning not only to attract, but to keep its nurses once hired. We are

not persuaded that this term was only meant to apply to entry level

nurses and not to nurses with more experience.

The agency argued it could not set starting IEQA pay higher because it

would cause pay compression at the higher steps and it was not justified

by its vacancy and turnover rate data. It also argued that it had no

business justification for extending the rate range. The record supported

the AJ's conclusion that the agency had experienced retention problems at

the intermediate level, thus justifying an extension of the rate range.

Just prior to implementation of the Pay Act, the highest percentage

of nurses who left the agency were at the intermediate level (72%)

with 33% at the IEQA level according to the agency's nurse recruiter.

Moreover, the agency admitted its most chronic vacancy was for critical

care nurses, most, if not all of whom were employed at the IEQA level.

It was undisputed that the most chronic vacancy was for critical care

nurses with those positions remaining vacant even two years after

implementing the Act.

Despite the apparent pay compression at the IEQA level, the VAMC failed

to adequately explain why it could not implement measures provided in the

Pay Act to address the problem. The record contains correspondence from

the Congressmen who authored the Pay Act, urging the VA Chief Medical

Director to use extended rate ranges as provided for in the Pay Act.

This measure had been specifically included in the law to alleviate pay

compression and to stem the loss of personnel at the intermediate levels.

In addition, the record reflected that other VA hospitals had extended

their rate ranges to as many as 26 steps in an apparent effort to address

pay compression. Therefore, the agency failed to establish that it had

a legitimate business reason for not taking advantage of this measure

at the VAMC in St. Louis.

It was clear from the record that the agency was not arguing that it

operated under budgetary constraints. More than one agency witness

testified that additional funding was available to implement the law,

and that they were not concerned about budget limitations in setting

the pay schedules under the Act.

We do agree with the agency's contention that the pay schedule set for

intermediate pay (non-EQA), met the Pay Act requirement regarding

comparability with pay in the private sector. This provided the

basic scale for setting IEQA pay. Here, we find no support for the

AJ's factual conclusion that the agency incorrectly set beginning pay

for IEQA nurses and that it had an adverse impact on IEQA nurse pay.

The record establishes that beginning IEQA pay at VAMC was higher than 6

out of 8 �certainty� hospitals.<13> At the maximum pay level for IEQA

nurses, however, the agency fell far short of reaching equivalent pay

when compared to the certainty hospitals.

Feasible Alternative

Under a disparate impact analysis, once the agency proves a business

purpose for the specific policy that resulted in a disproportionate

adverse impact on the protected group, the complainants must demonstrate

that there is a feasible alternative that would not have the disparate

impact but would serve the business purpose. Fort Worth supra.

Because we concluded that the agency's conversion method for making the

transition to the new pay scales did not have a disparate impact on IEQA

nurse pay, we need not address an alternative conversion process.

As discussed above, we concluded that starting IEQA nurse pay under

the Pay Act did not have an adverse impact or contribute to the

pay compression in IEQA pay. Therefore, we have not considered the

alternatives to setting beginning pay and do not find substantial evidence

to support the AJ's conclusion for doing so.

The agency argued that it was not feasible for it to extend the steps

of the pay scale for intermediate nurses, because the Pay Act required

that it have actual evidence of pay-related problems at the higher end of

the scale. The agency's position that it did not have such justification

is not supported by the record. The agency acknowledged that �Since

April 7, 1991, 33 nurses were hired at JC division. Twelve of these

nurses were at the Intermediate Grade and 21 were at Entry Grade... This

indicates that our salary for new graduates is competitive, however,

our salary for Intermediate Grade nurses is not.� Exit interviews

conducted by the agency revealed several cases where pay was cited

as the employee's reason for leaving. In addition, the sheer number

of losses in the year of the Pay Act's implementation indicated twice

as many Intermediate Grade nurses had left (13 (excluding retirees))

as compared to Entry Grade nurses (6). The Secretary of the agency

reported to Congress in December 1991 that pay-related reasons were

still a significant factor for nurses at all levels leaving the VA and

that inadequate pay was the greatest reason for specialized nurses such

as nurse anesthetists leaving the VA. The Secretary acknowledged that

�senior employees� expressed dissatisfaction with the reduced potential

for future earnings, and stated that the agency would study the problem.

He also indicated a need for further study of rate range extensions.

Therefore, the evidence in the record supported the AJ and established

that retention of nurses at the Intermediate level was a problem which

provided justification for adjustments to the pay schedule.

The agency's contention that it would become a pay leader if it pushed

its scale for IEQA nurses pay higher was not supported by the record.

The highest maximum pay among certainty hospitals was $56,742.00 and

the lowest was $37,377.00, placing the agency second from the bottom

with maximum pay at $40,674.00. Therefore, the agency clearly had some

leeway before risking becoming a pay leader. We reject this contention

as an inadequate reason for maintaining the agency's pay scale without

more concessions towards raising IEQA nurse pay additional steps. Thus,

we find that extension of the pay schedule at the Intermediate level

was feasible and would have alleviated the pay compression which had a

disparate impact on nurses over the age of 40.

We agree with the AJ's conclusion that there was no disparity indicated

in the agency's award criteria as it essentially reiterated the criteria

outlined in the law enacted by Congress.

Class Action

The record indicates that one of the pro se complainants requested that

the complaint be certified as a class action at the time her complaint

was filed. There is no evidence that the agency referred the complaints

to the AJ for consideration of the class certification issue as required

by our procedures even though it was aware that at least one of the

complainants sought class certification. See EEOC Management Directive

(MD) 110, Chapter 7(10/92)<14>. Due to the agency's inaction, the

AJ apparently was not aware that the complainants had requested class

certification and therefore, concluded that their request for relief for

all IEQA nurses was not appropriate in a case where three complaints had

been consolidated. This was error. It was apparent from the record that

the agency was well aware class certification had been requested and that

the issue should have been brought to the AJ's attention for a decision.

Since this was not done we consider below whether the record supports

class certification.

Under the Commission's regulations, class complaints must satisfy the

four requirements of numerosity, commonality, typicality, and adequacy of

representation. 29 C.F.R. �1614.204(a)(2). The failure of a complainant

to meet any one of these four criteria is sufficient reason for dismissal.

Id. � 1614.204(d)(4); Mastren v. U.S.Postal Service, EEOC Request No.

05930253 (October 27, 1993). The party seeking to certify a class

bears the burden of proving that the class complaint meets all four

requirements. Id; Coleman v. Watt, 40 F.3d 255, 259 (8th Cir. 1994);

Ken-Chojnicki v. Runyon, 180 F.R.D. 237, 242 (W.D.N.Y. 1998), (citing

Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2245 (1997).

EEOC regulation 29 C.F.R. �1614.204(a) (i) requires that a class be

so numerous that a consolidated complaint of the members of the class

is impractical. The Supreme Court has indicated that the numerosity

requirement of Rule 23 of the Federal Rules of Civil Procedure after

which the regulation is patterned, imposes no absolute limit on the

size of the class but rather requires a case by case examination.

General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). In this case,

the number of IEQA nurses at the time of implementation of the Pay Act

was 234 (62% x 378=234). At least one of the complainants indicated

that 170 nurses similarly situated to the complainants signed a petition

in support of the complaint. Thus, there is no question the class meets

the criteria of numerosity.

Commonality is established when a common thread of discrimination

confronts all members of a class. Conanan v. FDIC, EEOC Appeal No.

01952486 (January 13, 1998). Here, the complainants, who were all IEQA

nurses, as well as those similarly classified, were adversely affected

by the new pay scale implemented in response to the Pay Act. Therefore,

there is little dispute that commonality among potential class members is

satisfied. Typicality is similar to commonality and requires a showing

that the claims of one are typical of the claims of the class. Id.

Again, there is little doubt that the complainants' claims are typical

of the potential class of IEQA nurses over the age of 40 and therefore,

the Commission concludes, that typicality has been satisfied.

We have considered the issue whether there has been adequate

representation of the class during the pendency of the case before the

administrative judge and then on appeal. Although the complainants

are not themselves lawyers, it is clear from the record including the

transcript of the hearing, that they have adequately represented the

interests of the class. They were successful in producing relevant

evidence and testimony for the class as a whole at the administrative

hearing, and in rebutting and responding to the agency's arguments and its

final decision. Consequently, we do not have the same concerns whether

the class has been fairly represented or whether the class agents have

a potential conflict of interest. We are normally hesitant to permit

a pro se litigant to represent a class. Sonia Byrd v. U.S. Dept. of

Agriculture, Request No. 05900291 (May 20, 1990). We have done so,

however, in cases where we were persuaded the interests of the class

would be adequately protected. Yovan v. Department of the Treasury ,

EEOC Appeal No. 01955786, July 17, 1997). In this case, we conclude

that it is evident from the record that the class has been adequately

represented for purposes of certification and as such, the elements of

certification have been satisfied.

We, therefore, find that the claims presented in this appeal meet

the prerequisites for a class action and that the class is hereby

provisionally certified as consisting of those IEQA nurses over the age of

40 as of April 7, 1991. Because there remains to be determined whether

there was class-wide discrimination, we leave the question of whether

the complainants may continue as class agents for the AJ's consideration.

On this question, the AJ should consider whether the complainants would

provide adequate representation on the remaining issues given the relief

they have already been granted by this decision.

CONCLUSION

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 REVERSE the agency's final

decision, and find the agency's 1991 pay schedule had a discriminatory

disparate impact on the individual complainants. We also provisionally

certify the aforementioned class and remand the issue of whether the 1991

and subsequent pay schedules resulted in a class-wide disparate impact

on IEQA nurses over the age of 40. If so, the AJ will determine the

appropriate remedy that should be instituted. We find that the agency's

implementing measures for cash awards were not discriminatory. We REMAND

this case as indicated below, for remedial actions in accordance with

this decision and order.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1 The agency shall retroactively adjust the 1991 pay scale for

the complainants to set the IEQA maximum pay levels at competitive

rates in line with the survey data available for certainty hospitals

in 1991. Such adjustments shall include an increase in the number of

steps appropriate to reach the maximum pay established by the agency.

Additional adjustments to each subsequent pay scale adopted by the agency

in 1992 as they may apply to the complainants and thereafter shall also

be made in accordance with this order. The agency shall accomplish the

adjustments within 120 days of receipt of this order.

2. The agency shall determine the appropriate amount of pay (with

interest, if applicable) and adjustment to benefits due the individual

complainants, pursuant to 64 Fed. Reg. 37659 (1999) (to be codified

at 29 C.F.R.�1614.501) no later than 120 calendar days after the date

this decision becomes final. The complainants shall cooperate in the

agency's efforts to compute the amount of back pay and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the agency shall issue a check to the complainant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision.�

Within 90 days of the agency's receipt of this Decision, the agency shall

issue the attached notice to the class members of the EEOC's decision

certifying this class complaint, in accordance with 29 C.F.R. �1614.204

and the MD 110 Chapter 8 (November 1999);

This matter is hereby referred to the St. Louis District Office for

assignment of an administrative judge for a determination whether the

agency's pay-setting policies resulted in class-wide discrimination and

if so, the remedy that should apply to the individual class members.

Additionally, the AJ will ensure that the class is adequately represented

by a class agent and if necessary, an attorney.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its St. Louis VA Medical Center

facility, copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (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 ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 19848, Washington,

D.C. 20036. 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 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 64 Fed. Reg. 37,644,

37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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 (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:

August 17, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________________ ______________________

Date Equal Employment Assistant

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated__________which found that a

violation of the Age Discrimination in Employment Act, 29 U.S.C. � 621

et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY or their

EEO ACTIVITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The St. Louis Veterans' Administration Medical Center, St. Louis,

Missouri, (hereinafter "the facility") supports and will comply with

such Federal law and will not take action against individuals because

of their age.

The facility has been found to have discriminated against employees

because of their age. The agency has been ordered to take affirmative

steps to correct the disparity found to have unfairly affected its nurses

over the age of 40.

The facility will not in any manner restrain, interfere, coerce,

or retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to, Federal equal employment opportunity law.

______________________________

(Signature)

Date Posted: ____________________

Posting Expires: ________________

29 C.F.R. Part 16141 On November 9, 1999, revised regulations governing

the EEOC's federal sector complaint process went into effect. These

regulations apply to all federal sector EEO complaints pending at any

stage in the administrative process. Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.

2EQA is the abbreviation for Enhanced Qualifications or Assignments.

3The AJ's findings of fact relate to the time period on or about April

1991 when the agency implemented the Nurses' Pay Act of 1990.

4Entry level nurses comprised entry and entry II until they were combined

into one grade level in 1991. Full grade and intermediate grades were

combined into one intermediate grade in 1991.

5The special salary rate had been put into effect for entry level nurses

prior to the Nurses Pay Act to help VA hospitals attract new graduates.

IEQA nurses were paid from the National Pay Schedule.

6Under the conversion method using the special pay rate, an Intermediate

nurse at step 1 received an increase as follows: $29,910.00 - $29,145.00

= $765.00. If the same nurse had been converted using the National

Pay Scale the increase would have been as follows: $29,910.00 -

$25,717.00=$4,193.00.

7Evidence established that the maximum salary for IEQA nurses in the

community was $56,742.00 compared to $40,674 at VAMC for a difference

of $16,078.00.

8Evidence established that the maximum salary for Entry nurses in the

community was $41,600.00 compared to $34,295.00 for a difference of

$7,305.00.

9 Chart compiled by the EEOC, Office of General Counsel, Research and

Analytic Services.

10JB is the abbreviation for Jefferson Barracks Division, JC is for John

Cochran Division.

11Jefferson Barracks Division had similar decreases from January 1990

to April 1991.

12In January 1991 the agency instituted a conversion schedule before it

implemented the Pay Act in April 1991.

13�Certainty� hospitals were those most comparable to VAMC in terms of

location, size etc.

14This authority was in effect at the relevant time period. The MD 110

was updated on November 1999.