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.